EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of May 1, 2005 (the
"Agreement"), is entered into between Wachovia Bank, National Association (the
"Seller") and Wachovia Commercial Mortgage Securities, Inc. (the "Purchaser").
The 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 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 May 1,
2005, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (in such capacity, the "Master Servicer"), GMAC Commercial
Mortgage Corporation, as special servicer (in such capacity, the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee"), and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein (including the Schedules attached hereto) 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.
The 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 $1,405,371,542 (the "Wachovia 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 purchase and
sale of the Mortgage Loans shall take place May 19, 2005, or such other date as
shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the Mortgage
Loans shall be equal to (i) % of the Wachovia Mortgage Loan Balance as of
the Cut-Off Date, plus (ii) $3,842,590, which amount represents the amount of
interest accrued on the Wachovia 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 Aggregate Purchase Price shall be paid to the Seller or its
designee 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
Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, the 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 the 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 Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds.
(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 on or 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
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver 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, 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 "LaSalle Bank National Association, as trustee
for the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-C18" or in
blank (or a lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto);
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) 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 (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of Wachovia
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2005-C18", or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "LaSalle Bank National Association, as trustee
for the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-C18", or in
blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution 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 or consolidated;
(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 or an agreement to provide
the same pursuant to binding escrow instructions 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 Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, if there is an effective UCC Financing Statement and continuation
statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, an original UCC Amendment, in form
suitable for filing in favor of "LaSalle Bank National Association, as
trustee for the registered holders of Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2005-C18, as
assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease and (b) any loan
guaranty, indemnity, ground lessor estoppel or environmental insurance
policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan;
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable transfer or
assignment documents; and
(xiv) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Intercreditor
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.
Notwithstanding the foregoing, with respect to the One & Two International Place
Loan and the 000 Xxxx 00xx Xxxxxx Loan, the 2005-C17 Trustee will hold the
original documents related to the One & Two International Place Loan and the 000
Xxxx 00xx Xxxxxx Loan for the benefit of the 2005-C17 Trust Fund and the Trust
Fund, other than the related Mortgage Notes which will be held by the Trustee
under the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the 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 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) The 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 Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized and
validly existing and in good standing under the laws of the United States
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, 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 the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the 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 the Seller is a party or by which
the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution of this Agreement or the performance
by the 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 the Seller of or compliance by the 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 the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Aggregate Purchase Price. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I 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, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) shall be held by the Trustee until the earlier of (x) the
date on which the Master Servicer certifies to the Trustee and the Controlling
Class Representative that such exception has been cured (or the Trustee
certifies the same to the Controlling Class Representative), at which time such
funds or letter of credit, as applicable, shall be returned to the Seller and
(y) thirty (30) Business Days or, if the Controlling Class Representative has
extended the cure period, forty-five (45) Business Days after the Closing Date;
provided, however, that if such exception is not cured within such thirty (30)
Business Days or forty-five (45) Business Days, as the case may be, (A) in the
case of clause (2), the Trustee shall retain the funds or letter of credit, as
applicable, or (B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan and any letter of credit will be returned to the
Seller.
If the Seller 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 the 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 the date
that any party to the Pooling and Servicing Agreement discovers such Document
Defect or Breach provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the applicable Mortgage Loan, the interest of the Trust therein or the
interests of any Certificateholder, cure such Document Defect or Breach, as the
case may be, in all material respects, which shall include payment of actual or
provable losses and any Additional Trust Fund Expenses directly resulting from
any such Document Defect or Breach 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) other than with respect to the One & Two
International Place Loan and the 000 Xxxx 00xx Xxxxxx Loan, 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 the 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 the Seller shall have delivered an officer's
certificate to the Trustee setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the 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 value of
the related Mortgage Loan, the interests of the Trust therein or the interests
of any Certificateholder 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 significant servicing obligations. 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, the 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. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of lender's title
insurance as described in Representation 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.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred by the Purchaser in connection with such modification or
accommodation (including but not limited to recoverable attorney fees) shall be
paid by the Seller.
(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 the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loans.
(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. Nothing in this Agreement shall
prohibit the Purchaser or its assigns (including the Master Servicer and/or the
Special Servicer) from pursuing any course of action authorized by the Pooling
and Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
90 days of the Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made in
full, this paragraph describes the sole remedy available to the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf regarding any such Breach and the Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(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 Seller 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 Seller) 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 association 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 Seller 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
enter into and/or 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, Xxxxxxxxxx & Xxxx
LLP, 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 Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and 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 Seller, the Underwriters, the Initial
Purchasers 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 Seller 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 Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) A letter shall have been received 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 Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that: (i)
the representations and warranties of the 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) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the 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 the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit 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 Specified Portions of the Memorandum and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit 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. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A thereto, the diskette which accompanies the Prospectus Supplement
(insofar as such diskette is consistent with such Annex A) and the following
sections of the Prospectus Supplement (exclusive of any statements in such
sections that purport to summarize the servicing and administration provisions
of the Pooling and Servicing Agreement): "Summary of Prospectus Supplement--The
Parties--The Mortgage Loan Seller," "Summary of Prospectus Supplement--The
Mortgage Loans," "Risk Factors--The Mortgage Loans," and "Description of the
Mortgage Pool--General," "--Mortgage Loan History," "--Certain Terms and
Conditions of the Mortgage Loans," "--Assessments of Property Condition,"
"--Co-Lender Loans," "--Additional Mortgage Loan Information," "--Twenty Largest
Mortgage Loans," "--The Mortgage Loan Seller," "--Underwriting Standards," and
"--Representations and Warranties; Repurchases and Substitutions." The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement and the first and second full paragraphs on page
"iii" of the Memorandum.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and an original or copy of a certificate of good standing of the Seller
issued by the Comptroller of the Currency not earlier than sixty (60) days prior
to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers 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 Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser 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 Preliminary 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, (B) any items similar to Computational Materials or ABS Term Sheets
forwarded by the Seller to the Initial Purchasers, or in any revision or
amendment of or supplement to any of the foregoing or (C) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B) and (C) above being
defined as the "Disclosure Material"), or (ii) arise out of or are based upon
the omission or alleged omission to state therein (in the case of Computational
Materials and ABS Term Sheets, when read in conjunction with the Prospectus
Supplement, in the case of items similar to Computational Materials and ABS Term
Sheets, when read in conjunction with the Memorandum, and in the case of any
summaries, reports, documents, written or computer materials, or other
information contemplated in clause (C) above, when read in conjunction with the
Memorandum) 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, with respect to the Disclosure Material described in
clauses (A) and (B) of the definition thereof, only if and to the extent that
(I) any such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, 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 and the Preliminary 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 occurring in, or with respect
to, such Disclosure Material, 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 Seller set forth in the Specified Portions of
each of the Prospectus Supplement, the Preliminary Prospectus Supplement and the
Memorandum, (III) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 or (IV) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon any other written information concerning the characteristics
of the Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties furnished to the Purchaser, the Underwriters or the Initial
Purchasers by the Seller; 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 or the Preliminary 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.
Notwithstanding the foregoing, the indemnification provided in this Section 7(a)
shall not inure to the benefit of any Underwriter or Initial Purchaser (or to
the benefit of any person controlling such Underwriter or Initial Purchaser)
from whom the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if (x) the subject
untrue statement or omission or alleged untrue statement or omission made in any
Disclosure Material (exclusive of the Prospectus or any corrected or amended
Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum (in either case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus or Memorandum (in either case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the written confirmation of the sale of such Certificates to such person, and
(z) in the case of a corrected or amended Prospectus or Memorandum, such
Underwriter or Initial Purchaser received electronically or in writing notice of
such untrue statement or omission and updated information concerning the untrue
statement or omission prior to the written confirmation of such sale. The Seller
shall, subject to clause (c) below, 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 will be in addition to any liability which
the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-120922 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 4,
2005, as supplemented by the prospectus supplement dated May 4, 2005 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the prospectus
supplement dated April 21, 2005, relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated May 4, 2005, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class A-J-1, Class A-J-2,
Class B, Class C and Class D 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 Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx 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 "Xxxxxx 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 Xxxxxx 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 Letters dated April 21, 2005 and rendered
by KPMG LLP (a "hard copy" of which Data File was initialed on behalf of the
Seller and the Purchaser).
(c) As promptly as reasonably practicable 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 Seller (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 Section 7(a) (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 reasonably 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, the Underwriters and the Initial Purchasers, 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). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) 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 (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). 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;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) 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(d) 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 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) 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, the Initial Purchasers, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchasers, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchasers and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the aggregate of the
following amounts: (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, Term Sheet 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 fees
and disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller 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; (vii)
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; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Purchaser, the Underwriters and the Initial
Purchasers; provided, however, Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the expense of recording
any assignment of Mortgage or assignment of Assignment of Leases as contemplated
by Section 2 hereof with respect to the Seller's Mortgage Loans. 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 Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 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 the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, 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 9-313 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 Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. 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 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 13. 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 14. 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 15. 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 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller 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 17. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters and the Initial Purchasers (each 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, the Initial Purchasers and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. 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. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. 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 21. 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 Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
------
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxxx, XX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx, XX
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
---------
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
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 by the mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by the related mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation 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 its 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, liquidation 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, 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 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 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) and exclusions set forth in the
applicable policy described in paragraph (12) below 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 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 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 a Crossed
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 under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, 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 at the time of the origination
of the Mortgage Loan to perfect a valid 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, receivership, 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, water charges, sewer rents and governmental
assessments, or installments thereof, 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, water charges, sewer rents 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) at
least 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 was in
full force and effect with respect to each related Mortgaged Property;
and, as of the Closing 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. If (1) such
Mortgage Loan is secured by a Mortgaged Property located in the State of
California in "seismic zone" 3 or 4 and (2) a seismic assessment based on
at least a 100 year look back with a ten percent (10%) probability of
exceedence in a 50-year period, revealed a maximum probable loss in excess
of 20% of the replacement cost of the improvements on such Mortgaged
Property, the Mortgaged Property is covered by earthquake insurance. If
any portion of the improvements on the related Mortgaged Property was, at
the time of origination, in an area identified in the Federal Register by
the Federal Emergency Management Agency as having special flood hazards
falling within zones A or V in the national flood insurance program (an
"SPF Area"), and flood insurance was available, a flood insurance policy
meeting the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of (1) the
outstanding principal balance of such Mortgage Loan, and (2) the maximum
amount of insurance available under the National Flood Insurance Act of
1968, as amended. 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 mortgagee 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, with respect to
non-payment, 10 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 paragraph of this
Schedule I or in any paragraph of Schedule II, 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 or contemplated 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 (prepared in accordance with
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)) 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 identified as necessary by the environmental consulting firm 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), (ii) the related borrower or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure 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, (iii) the borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. 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 for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical 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, insolvency, reorganization,
receivership, moratorium, redemption, liquidation 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 each Co-Lender
Loan) 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, transfers by
devise, descent or operation of law upon the death of a member, general
partner or shareholder of the related Borrower 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) "government securities" as defined in
the Investment Company Act of 1940, as amended, sufficient to pay the
Mortgage Loans (or portions thereof) 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, (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 the portion thereof that is being released), 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 upon a letter from governmental
authorities, a legal opinion, an endorsement to the related title policy,
or based upon other due diligence considered reasonable by prudent
commercial conduit mortgage lenders in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-Off Date, there are no material 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. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, 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
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 Seller's 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. 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 ability to pay principal, interest or any other amounts due
under the Mortgage Loan 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 (exclusive of any default interest,
late charges or prepayment premiums) 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 Crossed Loan 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 as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, 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
for servicing of commercial mortgage loans for conduit loan programs.
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. 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 material 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 and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of 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 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 permit the
lender to charge all of its expenses associated with a defeasance to the
Mortgagor (including rating agencies' fees, accounting fees and attorneys'
fees), and provide that the related Mortgagor must deliver (or otherwise,
the Mortgage Loan documents contain certain provisions pursuant to which
the lender can require) (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)
assurances 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 with respect to the Companion Loan of any Co-Lender 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 Cut-Off Date of the
related Mortgage Loan).
47. As of the date of origination of each Mortgage Loan and, to the actual
knowledge of Seller, as of the Closing Date, there was no pending
proceeding for the total or partial condemnation of any related Mortgaged
Property that materially affects the value thereof, and such Mortgaged
Property is free of material damage.
48. One or more engineering assessments or updates of a previously conducted
engineering assessment were performed by an Independent engineering
consulting firm with respect to each related Mortgaged Property during the
12-month period preceding the Cut-Off Date, and the Depositor, having made
no independent inquiry other than to review the report(s) prepared in
connection with such assessment(s) or update(s), does not have any actual
knowledge of any material and adverse engineering condition or
circumstance affecting such Mortgaged Property that was not disclosed in
such report(s).
49. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and an escrow of funds in an amount sufficient to pay taxes resulting
from a breach thereof has been established) or is subject to an
endorsement under the related title insurance policy; and each related
Mortgaged Property is served by a public or other acceptable water system,
a public sewer (or, alternatively, a septic) system, and other customary
utility facilities.
50. The Seller has not received actual notice with respect to a Mortgage Loan
that any mechanics' and materialmens' liens have encumbered such Mortgaged
Property since origination that have not been released, bonded, insured
against or escrowed for.
51. No Person has been granted or conveyed the right to primary service a
Mortgage Loan or receive any consideration in connection therewith except
(A) with respect to primary servicers that are to be sub-servicers of the
Master Servicer, (B) as has been conveyed to Wachovia, in its capacity as
a primary servicer, or (C) has been terminated.
52. To the Seller's knowledge, the related Mortgagor is a Person formed or
incorporated in a jurisdiction within the United States.
53. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
54. 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:
(A) 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.
(B) 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).
(C) Such Ground Lease may not be amended, modified, canceled
or terminated without the prior written consent of the mortgagee and
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.
(D) 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.
(E) 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.
(F) 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.
(G) 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.
(H) 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.
(I) 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 commercial mortgage
lender, 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).
(J) The Ground Lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a
prudent commercial lender.
(K) 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.
(L) The terms of the related Ground Lease have not been
amended, altered or waived by Seller except in a written document
contained in the Mortgage File.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 8
------------------------------
Loans Description of Exception
----- ------------------------
1 One & Two International Place Each Mortgage Loan is
2 000 Xxxx 00xx Xxxxxx cross-collateralized and
21 Home Market Foods cross-defaulted with its related
40 Xxxxxx Xxxx Apartments Companion Loan, which is not included
41 Fall Creek Harbour Shopping in the Mortgage Pool. In addition,
Center each Companion Loan is secured by the
same Mortgaged Property and the same
mortgage securing its related Mortgage
Loan.
9 Casa Paloma Shopping Center The title insurance policy excepts
from coverage any charge upon the land
by reason of the provisions for common
area maintenance at the Mortgaged
Property.
00 Xxxxxxxxxx Xxxxx The Mortgage is subject to an
unsubordinated master lease. The
equity in the single-purpose entity
master tenant has been pledged to
Seller to secure the Mortgage Loan.
Exceptions to Representation 11
-------------------------------
Loans Description of Exception
----- ------------------------
18 La Serena Apartments The Mortgaged Property was damaged by
fire. The previous lender and the
Seller have collected the fire
insurance proceeds and are disbursing
such proceeds as the Mortgaged
Property is repaired.
Exceptions to Representation 12
Loans Description of Exception
----- ------------------------
9 Casa Paloma Shopping Center The title insurance policy excepts
from coverage any charge upon the
premises by reason of the provisions
for common areas maintenance at the
Mortgaged Property.
55 PNC Bank & Marriott Ground Lease Pursuant to local custom, the Title
Policy did not include a
same-as-survey endorsement.
Exceptions to Representation 13
-------------------------------
Loans Description of Exception
----- ------------------------
7 000 Xxxxx Xxxxxx The related Mortgage Loan documents
require that the borrower's insurance
policies contain only a 15-day notice
period prior to any amendment,
termination or cancellation of such
insurance coverage.
12 Fullerton Towers The Mortgage does not require that the
Seller be the loss payee on all
insurance policies, however, the
mortgage requires the listing of the
mortgagee as an additional insured.
00 Xxxxxxxxx - Xxxxxx Xxxxxx, XX Each Mortgaged Property is
00 Xxxxxxxxx - Xxxx Xxxxx, XX self-insured.
00 Xxxxxxxxx - Xxxxxxx Xxxxxxx, XX
66 Walgreens - Georgetown, TX
00 Xxxxxxxxx - Xxxxxxxxx, XX
Exceptions to Representation 17
-------------------------------
Loans Description of Exception
----- ------------------------
1 One & Two International Place Each Mortgage Loan is
2 000 Xxxx 00xx Xxxxxx cross-collateralized and
21 Home Market Foods cross-defaulted with its related
40 Xxxxxx Xxxx Apartments Companion Loan, which is not included
41 Fall Creek Harbour Shopping Center in the Mortgage Pool. In addition,
each Companion Loan is secured by the
same Mortgaged Property and the same
mortgage securing its related Mortgage
Loan.
9 Casa Paloma Shopping Center The related Mortgaged Property secures
additional debt that is not included
in the Trust Fund.
Exceptions to Representation 19
-------------------------------
Loans Description of Exception
----- ------------------------
3.16 Kadima Medical Office Pool - Environmental engineering report
Germantown Clinic recommended a filtration system for
waste produced by x-ray machines. No
escrow was required.
15 Springtown Shopping Center Environmental engineering report
recommended a small amount of
precautionary measures with respect to
a dry-cleaning tenant at the Mortgaged
Property. No escrow was required
Exceptions to Representation 22
-------------------------------
Loans Description of Exception
----- ------------------------
12 Fullerton Towers Wachovia Development Corporation, an
18 La Serena Apartments affiliate of the Seller, owns an 84%
membership interest in the related
borrower.
Exceptions to Representation 23
-------------------------------
Loans Description of Exception
----- ------------------------
12 Fullerton Towers Upon certain conditions set forth in
18 La Serena Apartments the borrower's organizational
documents, Wachovia Development
Corporation, an affiliate of the
Seller, may acquire the remaining
equity interests in the borrower
without mortgagee consent.
0 Xxxx Xxxxx II Xxxxxxx Properties, L.P. has the
pre-approved right to pledge its
equity interests in each borrower to
secure certain loan facilities and
related hedging agreements.
Exception to Representation 27
------------------------------
Loan Description of Exception
---- ------------------------
7 000 Xxxxx Xxxxxx The title policy excludes from
coverage certain encroachments listed
in Section 5 of Schedule B of the
Title Policy.
36 Hilton Garden Inn - The Mortgaged Property is
Dania Beach, FL "non-conforming" due to a lack of 6
parking spaces.
Exception to Representation 28
------------------------------
Loan Description of Exception
---- ------------------------
4 000 Xxxxx Xxxxxx The title policy excludes from
coverage certain encroachments listed
in Section 5 of Schedule B of the
Title Policy.
61 Extra Space Self Storage #3 - The improvements encroach on setback
Ocoee, FL lines and easements, and electrical
39 Extra Space Self Storage #3 - lines encroach upon the Mortgaged
Orlando (South Xxxx Property.
Young Parkway), FL
56 Extra Space Self Storage #3 - The improvements encroach on setback
Orlando (Lake Xxxxxxxxx lines and easements at the Mortgaged
Road), FL Property.
44 Extra Space Self Storage #3 -
Orlando (Metrowest
Boulevard), FL
Exception to Representation 31
------------------------------
Loan Description of Exception
---- ------------------------
65 Broadway Towers Apartments The sponsor of the borrower previously
failed to pay payroll taxes with
respect to a company that is
unaffiliated with the borrower. The
IRS has secured a personal judgment
against the sponsor.
Exceptions to Representation 34
-------------------------------
Loans Description of Exception
----- ------------------------
1 One & Two International Place These Mortgage Loans are
2 000 Xxxx 00xx Xxxxxx cross-collateralized and
21 Home Market Foods cross-defaulted with their related
40 Xxxxxx Xxxx Apartments Companion Loans which are not included
41 Fall Creek Harbour Shopping in the Mortgage Pool. In addition,
Center each Companion Loan is secured by the
same Mortgaged Property and Mortgage
securing its related Mortgage Note.
Exceptions to Representation 39
-------------------------------
Loans Description of Exception
----- ------------------------
39 Extra Space Self Storage #3 - The interest in the Mortgaged Property
Orlando (South Xxxx is fee simple through a Special
Young Parkway), FL Warranty Deed which restricts
44 Extra Space Self Storage #3 - improvements at the related Mortgaged
Orlando (Metrowest Property to less than 000,000 xxxxxx
Xxxxxxxxx), XX feet without the consent of the
grantor.
Exceptions to Representation 46
-------------------------------
Loans Description of Exception
----- ------------------------
9 Casa Paloma Shopping Center The related Mortgaged Property secures
additional debt that is not included
in the Trust Fund.
Exceptions to Representation 54
-------------------------------
Loans Description of Exception
----- ------------------------
3.3 Kadima Medical Office Pool - The Seller does not make any ground
Xxxxx Square Center lease representations regarding the
Garage Lease that is part of the
collateral securing Loan Number 3.
Exceptions to Representation 54(c)
----------------------------------
Loans Description of Exception
----- ------------------------
3.1 Kadima Medical Office Pool - The Ground Lease does not require the
Morristown Professional Building ground lessor to forward default
notices to the mortgagee, however, the
mortgage requires the borrower to
forward default notices to the
mortgagee.
5 Happy Valley Towne Center The Ground Lease requires the
mortgagee's consent for modifications
or amendments, but is silent as to
whether any modification or amendment
is binding without the mortgagee's
consent.
Exceptions to Representation 54(e)
----------------------------------
Loans Description of Exception
----- ------------------------
3.1 Kadima Medical Office Pool - The Ground Lease does not require the
Morristown Professional Building ground lessor to forward default
notices to the mortgagee; however, the
mortgage requires the borrower to
forward default notices to the
mortgagee.
Exceptions to Representation 54(f)
----------------------------------
Loans Description of Exception
----- ------------------------
3.1 Kadima Medical Office Pool - The Ground Lease is not subordinate to
Morristown Professional Building the lien of the mortgage.
Exceptions to Representation 54(g)
----------------------------------
Loans Description of Exception
----- ------------------------
3.1 Kadima Medical Office Pool - The related Ground Lease is silent.
Morristown Professional Building
Exceptions to Representation 54(k)
----------------------------------
Loans Description of Exception
----- ------------------------
3.1 Kadima Medical Office Pool - The related Ground Lease is silent .
Morristown Professional Building
5 Happy Valley Towne Center The Ground Lease is silent, but ground
lease may be assigned without ground
lessor consent in the event of a
foreclosure or rejection in bankruptcy.
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan
Loan Group Property
Number Number Name
1 1 One & Two International Place(1)
2 1 450 West 33rd Street(1)
3 1 Kadima Medical Office Pool
3.1 Morristown Professional Building
3.2 0000 Xxxxxxxxxxx Xxxxxx Building
3.3 Xxxxx Square Center
3.4 Xxxxxxx Medical Complex
3.5 Kadima Medical Building - Minot, ND
3.6 Verona Professional Building
3.7 South Hill Medical Center
3.8 Xxxxxxx XX Clinic
3.9 Orlando III Clinic
3.1 Xxxxxxx XX Clinic
3.11 Park Xxxxxxx Clinic
3.12 Orlando I Clinic
3.13 Tampa II Clinic
3.14 Regency Square Clinic
3.15 Tampa I Clinic
3.16 Germantown Clinic
3.17 Xxx Xxxx Xxxxxx
0 0 Xxxx Xxxxx II
5 1 Happy Valley Towne Center
6 1 Mercantile Bank & Trust Building
7 1 000 Xxxxx Xxxxxx
8 1 Cypress Lake at Stonebriar
9 1 Casa Paloma Shopping Center
10 1 Copaco Center
11 1 2700 Broadway
12 1 Xxxxxxxxx Xxxxxx
00 0 Xxxxxxxxxx Xxxxx
00 0 Xxxxxxxxxx Xxxxx
00 0 Springtown Shopping Center
16 1 Resort at Xxxxxxxxxx Xxxx Xxxxxxxxxx
00 0 Xxxxxxxx Xxxxx
18 2 La Serena Apartments
19 1 Sandpiper Village Apartments
20 1 Plaza at Wellington Green
21 1 Home Market Foods
00 0 Xxxxxx Xxxxxx Xxxxxxxxxx
00 0 Topanga and Victory
24 1 Embassy Suites - Orlando, FL
25 1 One Carlsbad Research Xxxxxx
00 0 Xxxxxxxx Xxxxx Shopping Center
27 1 Bear Creek Village Shopping Center
00 0 Xxxxxxxx Xxxx Xxxxxxxxxx
00 0 The Summit
30 1 1369 Broadway
31 1 Sterling Square Apartments
32 2 The Pointes of Marietta
33 1 Taylors Crossing
34 1 1900 Building
35 1 Extra Space Self Storage #3 - Atlanta, GA
36 0 Xxxxxx Xxxxxx Xxx - Xxxxx Xxxxx, XX
00 0 Xxxxxx Xxxxxx - Xxxxx XX
00 0 Amberview Apartments
39 1 Extra Space Self Storage #3 - Orlando (South Xxxx Xxxxx Parkway), FL
40 2 Xxxxxx Xxxx Apartments
41 1 Fall Creek Harbour Shopping Center
42 1 Sherwood Ridges Apartments
43 2 Celebration Park Apartments
44 1 Extra Space Self Storage #3 - Orlando (Metrowest Boulevard), FL
45 1 Courtyard by Marriott - Coral Springs, FL
00 0 Xxxxxxxxx Xxxxx Xxxxxxxxxx
00 0 The Madison
48 2 The Quad Apartments
49 1 Xxxx'x Home Improvement - Jonesboro, AR
50 1 Xxxxxxx Xxxxxxxxxx
00 0 Xxxxxx Xxxxx Medical Center
52 1 Walgreens - Staten Island, NY
53 1 Friarsgate Xxxxx Xxxxxxxx Xxxxxx
00 0 Xxxxxxxxx Xxxxxx Shopping Center
55 1 PNC Bank & Mariott Ground Lease
56 1 Extra Space Self Storage #3 - Orlando (Lake Xxxxxxxxx Road), FL
57 2 Sage Canyon
58 1 Walgreens - Glen Allen, VA
59 2 Pines on Pelham
60 1 Fairfield Inn Market Center
61 1 Extra Space Self Storage #3 - Ocoee, FL
62 0 Xxxxxxxxx - Xxxxxxx Xxxxxxx, XX
63 0 Xxxxx Xxxx Self Storage
64 1 King's Plaza
65 2 Broadway Towers Apartments
66 1 Walgreens - Georgetown, TX
67 1 Walgreens - Pineville, LA
68 1 Walgreens - Sidney, OH
69 1 Piggly Wiggly - Appleton, WI
70 1 Massillon Marketplace
71 1 Metro Storage - Phase II
72 1 Wachovia Bank Ground Lease
Cut-Off
Date
Mortgage Loan
Loan Zip Balance
Number Address City State Code County ($)
1 00-000 Xxxxxx Xxxxxx Xxxxxx XX 00000 Suffolk 216,000,000.00
2 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000 New York 132,500,000.00
3 Various Various Various Various Various 127,500,000.00
3.1 00 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Morristown
3.2 0000 Xxxxxxxxxxx Xxxxxx Xxxxx XX 00000 Bronx
3.3 00-00 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 Middlesex
3.4 0000-0000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 Xxxxx
3.5 000 Xxxxxxx Xxxxxxxxxx Xxxx Xxxxx XX 00000 Xxxx
3.6 000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 Essex
3.7 000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxxxxxx
3.8 0000 Xxxx Xxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Orange
3.9 0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Orange
3.1 000 Xxxxx Xxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 Orange
3.11 0000 Xxxx Xxxx Xxxxxxx Xxxxx Xxxx Xxxx XX 00000 Xxxxxxx
3.12 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Osceola
3.13 00000 Xxxxx X. Xxxxx Xxxxxxxxx Xxxxx XX 00000 Hillsborough
3.14 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx XX 00000 Xxxxx
3.15 000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Hillsborough
3.16 0000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000 Shelby
3.17 00000 Xxx Xxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxxx
4 2957-3041 and 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000 Orange 100,000,000.00
5 0000 Xxxx Xxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Maricopa 56,000,000.00
6 0 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000 Balitmore City 41,000,000.00
7 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000 New York 40,000,000.00
8 0000 Xxxxxx Xxxxxxx Xxxxxx XX 00000 Collin 29,770,000.00
9 0000 Xxxx Xxx Xxxx Xxxxxxxx XX 00000 Maricopa 29,050,000.00
10 000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxxx XX 00000 Hartford 29,000,000.00
11 0000 Xxxxxxxx Xxx Xxxx XX 00000 New York 27,500,000.00
12 1400 and 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Orange 26,800,000.00
13 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxx XX 00000 Arlington 26,000,000.00
14 0000 Xxxxx Xxxx Xxxxxx Xxxxx XX 00000 Contra Costa 24,975,000.00
15 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000 Berks 19,760,000.00
16 0000 Xxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000 El Paso 19,300,000.00
17 00 Xxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 Hartford 18,800,000.00
18 000 Xxxxx Xxxx Xxxxxx Xxxxx Xxx XX 00000 Orange 18,000,000.00
19 000 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 Xxxxxx 18,000,000.00
20 0000-0000 Xxxxx Xxxx 0 Xxxxxxxxxx XX 00000 Palm Beach 16,500,000.00
21 000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Norfolk 16,102,087.23
22 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000 Maricopa 16,100,000.00
23 6325 & 0000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxx Xxxxx XX 00000 Los Angeles 16,000,000.00
24 000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 Orange 15,976,876.23
25 2382 and 0000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000 San Diego 15,400,000.00
26 000-000 Xxxx Xxxxx Xxxx Xxxxx Xxxxxx XX 00000 Du Page 15,242,500.00
27 36004-36164 Xxxxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000 Riverside 15,065,000.00
00 Xxxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000 Wake 13,500,000.00
29 0000 Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Wake 12,500,000.00
30 0000 Xxxxxxxx Xxx Xxxx XX 00000 New York 12,000,000.00
31 0000 Xxxxxxx Xxxx Xxxxx Xxxxxxxx XX 00000 Mecklenburg 11,700,000.00
32 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Xxxx 10,787,772.89
33 0 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 Greenville 10,750,000.00
34 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Broward 9,978,428.16
35 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxxxx 9,600,000.00
36 000 XX 00xx Xxxxxx Xxxxx Xxxxx XX 00000 Broward 8,738,150.09
37 00000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000 Xxx 8,470,000.00
38 00000 - 000xx Xxxxx XX Xxxxxx XX 00000 King 8,300,000.00
39 00000 Xxxxx Xxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000 Orange 8,200,000.00
40 0000 Xxxxxx Xxxx Xxxxx Xxxxxx XX 00000 Jefferson 7,700,000.00
41 00000 Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 Xxxxxxxx 7,500,000.00
42 0000 Xxxxx Xxxxx Xxxxxxx-Xxxxx XX 00000 Forsyth 7,500,000.00
43 00000 00xx Xxxxx Xxxxx Xxxxxxx Xxx XX 00000 King 7,000,000.00
44 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX 00000 Orange 6,400,000.00
45 000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Broward 6,241,322.74
46 00000 X Xxxxx Xxxxx XX 00000 Xxxxxxx 6,200,000.00
47 000 Xxxxxxxxxx Xxxxxx Xxxxxxx XX 00000 Berks 6,000,000.00
48 000 Xxxxx XxXxxxxx Xxxxxx Xxxxxxxxxx XX 00000 New Hanover 6,000,000.00
49 0000 Xxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Xxxxxxxxx 5,857,500.00
50 0000 Xxxxx Xxxxxxxxxx Xxxxxxx Xxx Xxxxxx XX 00000 Xxxx Xxx 5,680,000.00
51 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000 Sarasota 5,600,000.00
52 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Richmond 5,400,000.00
53 0000 Xxxxx Xxxxx Xxxx Xxxx XX 00000 Richland 5,388,000.00
54 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 Mecklenburg 5,000,000.00
55 762 & 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000 Xxxxxxx 4,981,825.33
56 00000 Xxxx Xxxxxxxxx Xxxx Xxxxxxx XX 00000 Orange 4,600,000.00
57 0000 0xx Xxxxxx XX Xxxxxxxxxxx XX 00000 Bernalillo 4,320,000.00
58 0000 Xxxxx Xxxx Xxxx Xxxxx XX 00000 Henrico 4,191,243.18
59 000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 Greenville 4,150,000.00
60 0000 Xxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Dallas 4,000,000.00
61 0000 Xxxxxxxx Xxxxx Xxxx Xxxxx XX 00000 Orange 3,750,000.00
62 00000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx XX 00000 Xxxxxxx 3,600,000.00
63 00000 Xxxxx Xxxx Xxxx Xxxxx XX 00000 Xxx 3,539,915.76
64 0000-0000 Xxx Xxxx Xxxx Xxxxxxx XX 00000 Broward 3,193,455.82
65 000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxx XX 00000 Salt Lake 3,000,000.00
66 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxxxx 3,000,000.00
67 0000 Xxxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Rapides 2,923,000.00
68 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000 Shelby 2,899,000.00
69 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 Outagamie 2,497,334.90
70 000 Xxxxxxxxx Xxxxxxxxxxx Xxxxx XX Xxxxxxxxx XX 00000 Xxxxx 2,497,263.60
71 00000 Xxx Xxxx Xxxx Xxxxxx XX 00000 Wayne 2,397,564.72
00 Xxxxxxxxx Xxxxxxx and U.S. Xxxxx 00 Xxxxxxxxx Xxxxxxx XX 00000 Bucks 1,498,301.79
Original Remaining
Term Term
to to
Monthly Maturity Maturity Maturity Original Remaining
Mortgage P&I Mortgage Number Unit or or Date Amort Amort
Loan Payments Grace Rate of of ARD ARD or Term Term Ground
Number ($) Days (%) Units Measure (Mos.) (Mos.) ARD (Mos.) (Mos.) Lease
1 1,186,746.76 5.2050% 1,852,501 Sq. Ft. 120 116 01/11/15 360 360 Fee
2 753,921.17 5.1000% 1,672,237 Sq. Ft. 120 118 03/11/15 324 324 Fee
3 738,656.71 5.2724% 796,653 Sq. Ft. 120 119 04/11/15 324 324 Various
3.1 154,089 Sq. Ft. Both
3.2 83,408 Sq. Ft. Leasehold
3.3 100,219 Sq. Ft. Both
3.4 50,651 Sq. Ft. Fee
3.5 114,000 Sq. Ft. Fee
3.6 61,468 Sq. Ft. Fee
3.7 56,126 Sq. Ft. Fee
3.8 21,251 Sq. Ft. Fee
3.9 22,000 Sq. Ft. Fee
3.1 25,000 Sq. Ft. Fee
3.11 19,477 Sq. Ft. Fee
3.12 16,500 Sq. Ft. Fee
3.13 16,200 Sq. Ft. Fee
3.14 15,713 Sq. Ft. Fee
3.15 16,200 Sq. Ft. Fee
3.16 12,480 Sq. Ft. Fee
3.17 11,871 Sq. Ft. Fee
4 560907 5.3900% 274,647 Sq. Ft. 84 83 04/11/12 360 360 Fee
5 328,225.17 5.7900% 679,588 Sq. Ft. 120 120 05/11/15 360 360 Leasehold
6 226,657.53 5.2600% 404,089 Sq. Ft. 84 80 01/11/12 360 360 Fee
7 224,362.69 5.3900% 97,717 Sq. Ft. 120 118 03/11/15 360 360 Fee
8 IO 5.4200% 472 Units 60 60 05/11/10 IO IO Fee
9 IO 5.6300% 130,096 Sq. Ft. 120 118 03/11/15 IO IO Fee
10 162,843.93 5.4000% 416,942 Sq. Ft. 120 118 03/11/15 360 360 Fee
11 IO 5.4100% 25,000 Sq. Ft. 120 120 05/11/15 IO IO Fee
12 146,004.97 5.1300% 226,019 Sq. Ft. 120 118 03/11/15 360 360 Fee
13 147,625.14 5.5000% 113,908 Sq. Ft. 120 119 04/11/15 360 360 Fee
14 144,322.56 5.6600% 178 Units 120 120 05/11/15 360 360 Fee
15 113,313.44 5.5900% 275,460 Sq. Ft. 120 119 04/11/15 360 360 Fee
16 109,462.22 5.4900% 250 Units 120 119 04/11/15 360 360 Fee
17 103,465.24 5.2200% 141,049 Sq. Ft. 120 119 04/11/15 360 360 Fee
18 96,627.89 5.0000% 188 Units 60 58 03/11/10 360 360 Fee
19 97,620.38 5.0900% 210 Units 120 120 05/11/15 360 360 Fee
20 92,549.61 5.3900% 57,205 Sq. Ft. 120 118 03/11/15 360 360 Fee
21 104,881.52 6.1000% 184,624 Sq. Ft. 120 119 04/11/15 300 299 Fee
22 85,936.97 4.9500% 240 Units 120 119 04/11/15 360 360 Fee
23 IO 5.1300% 159,286 Sq. Ft. 120 118 03/11/15 IO IO Fee
24 102,990.44 5.9900% 167 Rooms 120 119 04/11/15 300 299 Fee
25 85,995.71 5.3500% 98,928 Sq. Ft. 60 59 04/11/10 360 360 Fee
26 IO 4.8500% 128,870 Sq. Ft. 84 83 04/11/12 IO IO Fee
27 IO 4.8500% 81,218 Sq. Ft. 84 82 03/11/12 IO IO Fee
28 81,536.86 5.3300% 228 Units 120 120 05/11/15 300 300 Fee
29 70,035.37 5.3800% 120,820 Sq. Ft. 120 119 04/11/15 360 360 Fee
30 69,800.22 5.7200% 23,650 Sq. Ft. 120 120 05/11/15 360 360 Fee
31 65,188.79 5.3300% 256 Units 84 83 04/11/12 360 360 Fee
32 60,107.11 5.3200% 210 Units 120 119 04/11/15 360 359 Fee
33 57,905.58 5.0300% 548 Units 60 58 03/11/10 360 360 Fee
34 55,158.45 5.2400% 103,713 Sq. Ft. 60 58 03/11/10 360 358 Fee
35 IO 4.9500% 75,937 Sq. Ft. 60 59 04/11/10 IO IO Fee
36 58,589.49 6.4100% 156 Rooms 120 119 04/11/15 300 299 Fee
37 IO 5.4100% 65,753 Sq. Ft. 120 120 05/11/15 IO IO Fee
38 46,658.88 5.4100% 157 Units 60 59 04/11/10 360 360 Fee
39 IO 4.9500% 86,583 Sq. Ft. 60 59 04/11/10 IO IO Fee
40 43,864.80 5.5300% 206 Units 84 82 03/11/12 360 360 Fee
41 42820 5.5500% 52,071 Sq. Ft. 120 118 03/11/15 360 360 Fee
42 41,927.74 5.3600% 213 Units 120 119 04/11/15 360 360 Fee
43 38,958.31 5.3200% 248 Units 120 119 04/11/15 360 360 Fee
44 IO 4.9500% 87,765 Sq. Ft. 60 59 04/11/10 IO IO Fee
45 41,229.34 6.2500% 110 Rooms 120 119 04/11/15 300 299 Fee
46 34,814.91 5.4000% 148 Units 120 119 04/11/15 360 360 Fee
47 35,741.91 5.9400% 103,972 Sq. Ft. 120 120 05/11/15 360 360 Fee
48 32,909.60 5.1900% 136 Units 120 120 05/11/15 360 360 Fee
49 IO 4.8700% 126,405 Sq. Ft. 60 59 04/11/10 IO IO Fee
50 31,576.59 5.3100% 104 Units 120 119 04/11/15 360 360 Fee
51 39,862.11 5.9200% 45,000 Sq. Ft. 120 120 05/11/15 240 240 Fee
52 30,491.42 5.4500% 14,490 Sq. Ft. 60 60 05/11/10 360 360 Fee
53 30,457.39 5.4600% 67,810 Sq. Ft. 120 119 04/11/15 360 360 Fee
54 28,264.09 5.4600% 54,019 Sq. Ft. 120 119 04/11/15 360 360 Fee
55 27,455.54 5.2000% 6,000 Sq. Ft. 120 117 02/11/15 360 357 Fee
56 IO 4.9500% 69,385 Sq. Ft. 60 59 04/11/10 IO IO Fee
57 23,614.96 5.1600% 105 Units 120 119 04/11/15 360 360 Fee
58 23,584.29 5.4000% 14,820 Sq. Ft. 120 118 03/11/15 360 358 Fee
59 22,405.08 5.0500% 184 Units 120 119 04/11/15 360 360 Fee
60 23,572.11 5.8400% 117 Rooms 60 59 04/11/10 360 360 Fee
61 IO 4.9500% 72,850 Sq. Ft. 60 59 04/11/10 IO IO Fee
62 20,327.61 5.4500% 15,120 Sq. Ft. 60 60 05/11/10 360 360 Fee
63 22,354.73 5.7600% 58,280 Sq. Ft. 120 118 03/11/15 300 298 Fee
64 18,149.18 5.4900% 30,390 Sq. Ft. 120 118 03/11/15 360 358 Fee
65 17,583.49 5.7900% 94 Units 60 60 05/11/10 360 360 Fee
66 16,939.68 5.4500% 14,490 Sq. Ft. 60 60 05/11/10 360 360 Fee
67 IO 4.8500% 14,280 Sq. Ft. 120 117 02/11/15 IO IO Fee
68 IO 4.8900% 13,882 Sq. Ft. 120 117 02/11/15 IO IO Fee
69 14415 5.6400% 30,862 Sq. Ft. 120 119 04/11/15 360 359 Fee
70 14,194.73 5.5000% 22,716 Sq. Ft. 120 119 04/11/15 360 359 Fee
71 14,235.28 5.9000% 38,826 Sq. Ft. 120 119 04/11/15 360 359 Fee
72 8,348.21 5.3200% 4,510 Sq. Ft. 120 119 04/11/15 360 359 Fee
Master
Mortgage Servicing Anticipated Additional
Loan Fee ARD Repayment Interest Loan
Number Rate Loans Date Rate Originator
1 0.04000% N Wachovia
2 0.04000% N Wachovia
3 0.04000% N Wachovia
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
4 0.04000% N Wachovia
5 0.04000% N Wachovia
6 0.04000% N Wachovia
7 0.04000% N Wachovia
8 0.04000% N Wachovia
9 0.04000% Y 03/11/15 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% Wachovia
10 0.04000% Y 03/11/15 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% Wachovia
11 0.04000% Y 05/11/15 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% Wachovia
12 0.04000% N Wachovia
13 0.04000% N Wachovia
14 0.04000% N Wachovia
15 0.04000% N Wachovia
16 0.04000% N Wachovia
17 0.04000% N Wachovia
18 0.04000% N Wachovia
19 0.04000% N Wachovia
20 0.04000% N Wachovia
21 0.04000% N Wachovia
22 0.04000% N Wachovia
23 0.07000% N Wachovia
24 0.04000% N Wachovia
25 0.04000% N Wachovia
26 0.04000% N Wachovia
27 0.04000% N Wachovia
28 0.04000% N Wachovia
29 0.04000% N Wachovia
30 0.04000% N Wachovia
31 0.04000% N Wachovia
32 0.04000% N Wachovia
33 0.04000% N Wachovia
34 0.04000% N Wachovia
35 0.04000% N Wachovia
36 0.04000% N Wachovia
37 0.04000% Y 05/11/15 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% Wachovia
38 0.04000% N Wachovia
39 0.04000% N Wachovia
40 0.04000% N Wachovia
41 0.04000% N Wachovia
42 0.04000% N Wachovia
43 0.04000% N Wachovia
44 0.04000% N Wachovia
45 0.04000% N Wachovia
46 0.08000% N Wachovia
47 0.04000% N Wachovia
48 0.04000% N Wachovia
49 0.04000% Y 04/11/10 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0% Wachovia
50 0.04000% N Wachovia
51 0.04000% N Wachovia
52 0.04000% N Wachovia
53 0.04000% N Wachovia
54 0.04000% N Wachovia
55 0.04000% N Wachovia
56 0.04000% N Wachovia
57 0.04000% N Wachovia
58 0.04000% N Wachovia
59 0.04000% N Wachovia
60 0.04000% N Wachovia
61 0.04000% N Wachovia
62 0.04000% N Wachovia
63 0.04000% N Wachovia
64 0.04000% N Wachovia
65 0.04000% N Wachovia
66 0.04000% N Wachovia
67 0.04000% Y 02/11/15 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0% Wachovia
68 0.04000% Y 02/11/15 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0% Wachovia
69 0.04000% N Wachovia
70 0.04000% N Wachovia
71 0.04000% N Wachovia
72 0.04000% N Wachovia
Cross
Collateralized
and
Cross
Mortgage Defaulted Defeasance Secured Interest
Loan Environmental Loan Loan Early by Accrual
Number Insurance Flag (Y/N) Defeasance LC Method Lockbox
1 N Y N N Actual/360 Day 1
2 N Y N N Actual/360 Day 1
3 N Y N N Actual/360 Day 1
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
4 N Y N N Actual/360 Day 1
5 N Y N N Actual/360 Springing
6 N Y N N Actual/360 Day 1
7 N Y N N Actual/360 Day 1
8 N Y N N Actual/360
9 N N N N Actual/360 Day 1
10 Y Y N N Actual/360 Day 1
11 N Y N N Actual/360 Day 1
12 N Y N N Actual/360
13 Y Y N N Actual/360 Day 1
14 N Y N N Actual/360
15 N Y N N Actual/360 Springing
16 N Y N N Actual/360 Springing
17 N Y N N Actual/360 Springing
18 N N N N Actual/360
19 N Y N N Actual/360
20 N Y N Y Actual/360
21 N Y N N Actual/360
22 N Y N N Actual/360 Day 1
23 N Y N N Actual/360
24 N Y N N Actual/360
25 N Y N N Actual/360
26 N N N N Actual/360
27 N N N N Actual/360
28 N Y N N Actual/360
29 N N N N Actual/360
30 N Y N N Actual/360 Day 1
31 N Y N N Actual/360
32 N Y N N Actual/360
33 N Y N N Actual/360
34 N Y N N Actual/360 Springing
35 N Extra Space Self Storage Portfolio #3 Y N N Actual/360 Springing
36 N Y N N Actual/360
37 N N N N Actual/360 Day 1
38 N N N N Actual/360
39 N Extra Space Self Storage Portfolio #3 Y N N Actual/360 Springing
40 N Y N N Actual/360
41 N Y N N Actual/360
42 N Y N N Actual/360
43 N Y N N Actual/360
44 N Extra Space Self Storage Portfolio #3 Y N N Actual/360 Springing
45 N N N N Actual/360
46 N N N N Actual/360
47 N Y N N Actual/360
48 N Y N N Actual/360
49 N Y N N Actual/360 Springing
50 N Y N N Actual/360
51 N Y N N Actual/360
52 N Y N N Actual/360
53 N N N N Actual/360
54 N N N N Actual/360
55 N Y N N Actual/360 Springing
56 N Extra Space Self Storage Portfolio #3 Y N N Actual/360 Springing
57 N Y N N Actual/360
58 N Y N N Actual/360
59 N Y N N Actual/360
60 N N N N Actual/360
61 N Extra Space Self Storage Portfolio #3 Y N N Actual/360 Springing
62 N Y N N Actual/360
63 N Y N N Actual/360
64 N Y N N Actual/360
65 N Y N N Actual/360
66 N Y N N Actual/360
67 N Y N N Actual/360 Springing
68 N Y N N Actual/360 Springing
69 N Y N N Actual/360
70 N Y N N Actual/360
71 N Y N N Actual/360
72 N Y N N Actual/360
Initial
Annual Deposit
Deposit to
Mortgage to Capital Initial Ongoing
Loan Replacement Improvements TI/LC TI/LC
Number Reserve Reserve Escrow Footnote
1 183,120 2,158,900 22,334,679
2 334,447 22,125 14,000,000 (2)
3 160,171 197,905 (2)
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.1
3.11
3.12
3.13
3.14
3.15
3.16
3.17
4 27,465 83,500 (2)
5
6 83,175 (2)
7 19,604 (2)
8 94,200 3,750
9
10 156,250
11 5,000
12 120,808 300,000 (2)
13 16,116 1,095,000
14 115,788
15 18,314
16 56,250
17 19,745 10,625
18 47,004 78,250
19 52,500 1,005,734
20 8,581
21 42,464
22 59,964
23
24 200723.04(2)
25 27,492 5,800 874,000
26
27 100,000
28
29
30 3,075 112,438 225,000 (2)
31 555,000
32 52,500
33 137,000
34 28,500
35 11,364 2,625
36 144000(2)
37
38 39,250 56,844
39 13,104 1,875
40 51,500 400,000
41 5,207 (2)
42 53,250
43 62,000 20,125
44 13,164 18,000
45 96,952 63,275
46 14,800 400,000
47 20,795 24,375 200,000 (2)
48
49
50 31,679
51
52
53 6,781
54 13,505 30,000 (2)
55
56 7,560 1,250
57 33,718
58
59 55,200 230,000
60 61,332
61 10,920 8,438
62
63 8,040
64 125,000
65 23,500 1,250
66
67
68
69
70
71 4,209
72
(1) Two Mortgage Loans are part of a split loan structure and the related pari
passu companion loans are not included in the trust fund with respect to these
Mortgage Loans. Unless otherwise specified, the calculation of Balance per SF,
LTV ratios and DSC ratios were based upon the aggregate indebtedness of these
Mortgage Loans and the related pari passu companion loans.
(2) In addition to any such escrows funded at loan closing for potential TI/LC,
these Mortgage Loans require funds to be escrowed during some or all of the loan
term for TI/LC expenses, which may be incurred during the loan term. In certain
instances, escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
