MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of December
1, 1998 (the "Agreement"), is between Xxxxxxx Xxxxx Mortgage Investors, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx Mortgage Capital, Inc.,
a Delaware corporation (the "Mortgage Loan Seller"). The Mortgage Loan Seller
agrees to sell, and the Company agrees to purchase, the mortgage loans (the
"Mortgage Loans") described in, and set forth in, the Mortgage Loan Schedule
attached as Exhibit A to this Agreement (the "Mortgage Loan Schedule"). The
Company intends to deposit the Mortgage Loans and other assets into a trust
(the "Trust") and cause the creation of a series of certificates to be known as
Xxxxxxx Xxxxx Mortgage Investors, Inc., Commercial Mortgage Pass-Through
Certificates, Series 1998-C3 (the "Certificates"), evidencing beneficial
ownership interests in the Mortgage Loans and other assets, under a Pooling and
Servicing Agreement, to be dated as of December 1, 1998 (the "Pooling and
Servicing Agreement"), among the Company, as depositor, GE Capital Loan
Services, Inc., as master servicer (the "Master Servicer"), GE Capital Realty
Group, Inc., as special servicer (the "Special Servicer") and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee"). The Company intends to sell
certain Certificates to the Underwriter pursuant to the Underwriting Agreement
(the "Underwriting Agreement") between the Company and the Underwriter and
certain other Certificates to the Underwriter pursuant to the Certificate
Purchase Agreement (the "Certificate Purchase Agreement") between the Company
and the Underwriter. The transactions described above are herein referred to as
the "Securitization Transaction". Capitalized terms used but not otherwise
defined herein shall have the respective meanings given to them in the Pooling
and Servicing Agreement without giving effect to any amendment thereto unless
the Mortgage Loan Seller has given its consent to such amendment in writing and
signed by a duly authorized officer of the Mortgage Loan Seller.
1. Purchase Price; Purchase and Sale. (a) The purchase price
(the "Purchase Price") for the Mortgage Loans shall consist of a cash amount
equal to $638,408,606. The Purchase Price amount shall be payable by the
Company to the Mortgage Loan Seller on December 22, 1998 or such other date as
shall be mutually acceptable to the parties hereto (the "Closing Date") in
immediately available funds. The closing for the purchase and sale of the
Mortgage Loans shall take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York time), on the
Closing Date.
(b) The Mortgage Loan Seller does hereby, as of the Closing
Date, sell, transfer, assign, set over and convey (on a servicing released
basis) to the Company, its successors and
assigns, without recourse, and the Company does hereby, as of the Closing Date,
purchase, all the right, title and interest of the Mortgage Loan Seller in and
to the Mortgage Loans, including all interest and principal due on or with
respect to the Mortgage Loans after the Cut-Off Date, together with all of the
Mortgage Loan Seller's right, title and interest in and to (i) the proceeds of
any related title, hazard, primary mortgage or other insurance policies
received on or with respect to the Mortgage Loans after the Cut-Off Date and
(ii) all reserve accounts and escrow accounts established pursuant to the
related Mortgage Loan documents and the funds on deposit therein. All scheduled
payments of interest and principal due on or before the Cut-Off Date but
collected after the Cut-Off Date, and recoveries of interest and principal
collected before the Cut-Off Date, shall belong to, and be promptly remitted to
the Mortgage Loan Seller. In connection with such sale, transfer and assignment
to the Company, (A) the Mortgage Loan Seller shall pay to the Master Servicer
as the agent of the Trustee, on the Closing Date, an amount equal to all
payments of principal and interest and escrow payments received by the Mortgage
Loan Seller in respect of the Mortgage Loans which were due after the Cut-Off
Date, provided that with respect to all such payments received by the Mortgage
Loan Seller one Business Day prior to the Closing Date or at any time
thereafter, the Mortgage Loan Seller will remit such payments to the Master
Servicer within two Business Days following receipt; and (B) the Mortgage Loan
Seller shall cause the transfer of the reserve accounts and escrow accounts
related to the Mortgage Loans to the Master Servicer as agent of the Trustee on
the Closing Date. The Company hereby directs the Mortgage Loan Seller, and the
Mortgage Loan Seller hereby agrees, to deliver to each of the Trustee, the
Custodian, the Master Servicer and the Special Servicer (x) all documents,
instruments and agreements required to be delivered by the Company to the
Trustee, the Custodian, the Master Servicer and the Special Servicer under
Section 2.01 of the Pooling and Servicing Agreement, and meeting all the
requirements of such Section 2.01 and (y) such other documents, instruments and
agreements as the Company, the Trustee, the Custodian, the Master Servicer and
the Special Servicer shall reasonably request. In connection with the Mortgage
Loan Seller's delivery of Mortgage Loan documents in accordance with the
preceding sentence, the Mortgage Loan Seller hereby authorizes the Trustee as
the transferee of the Company to complete each endorsement or assignment in
blank appearing thereon in favor of the Trustee in such manner as the Trustee
shall determine in the exercise of its sole discretion (provided that such
endorsement or assignment will be without recourse, representation or warranty
to the Mortgage Loan Seller except as expressly set forth in this Agreement).
If, notwithstanding the Mortgage Loan Seller's representation to the contrary,
the Mortgage Loan Seller's endorsement of any Mortgage Note by allonge and
delivery of such allonge, together with such Mortgage Note, to the Trustee is
not effective under applicable law to legally and validly assign such Mortgage
Note to the Trustee, the Mortgage Loan Seller shall promptly, at its sole cost,
upon the
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written request of the Company, the Trustee or the Master Servicer, endorse such
Mortgage Note so as to legally and validly assign such Mortgage Note to the
Trustee. If the Mortgage Loan Seller cannot deliver any original or certified
recorded or filed document required to be recorded or filed prior to the
Closing Date and to be delivered as a part of a Mortgage File on or before the
Closing Date, the Mortgage Loan Seller shall use its best efforts, promptly
upon receipt thereof and in any case not later than 45 days after the Closing
Date, to deliver or cause to be delivered such original or certified recorded
or filed document to the Custodian (with a copy to each of the Master Servicer
and the Special Servicer) unless the Mortgage Loan Seller is delayed in making
such delivery by reason of the fact that such document has not been returned by
the appropriate recording or filing office, in which case, the Mortgage Loan
Seller shall notify the Company, the Trustee, the Custodian and the Master
Servicer in writing of such delay and shall deliver such document to the
Trustee (with a copy to each of the Master Servicer and the Special Servicer)
promptly upon the Mortgage Loan Seller's receipt thereof. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans.
(c) The Purchase Price refers to the proceeds of the sale of
the Certificates allocated to the Mortgage Loan Seller which, upon the final
determination of such amount, will be reduced by the Mortgage Loan Seller's
share of the Transaction Expenses (as defined herein), the preparation,
completion, filing and recording expenses relating to the Mortgage Loans as
described below in Section 1(e) and underwriting and placement commissions or
fees owed by the Mortgage Loan Seller to the Underwriter as provided in
Sections 1(d), (e) and (f) below.
(d) Concurrently with the distribution of the Purchase Price
to the Mortgage Loan Seller under Section 1(a), the Mortgage Loan Seller shall
pay to the Company its proportionate share of the estimated Transaction
Expenses and the estimated preparation, completion, filing, and recording
expenses relating to the Mortgage Loans described below in Section 1(e).
(e) The Mortgage Loan Seller authorizes the Master Servicer
as the agent of the Trustee to engage one or more third parties to effectuate,
at the Mortgage Loan Seller's expense, the preparation or completion and the
filing or recording of any Assignment of Mortgage, any Form UCC-2 or UCC-3
assignment and any reassignment of Assignment of Leases required to be
delivered, with respect to the Mortgage Loans, pursuant to the Pooling and
Servicing Agreement which has not yet been submitted for filing or recordation
on or before the Closing Date. The Company will deduct from the Purchase Price,
and promptly remit to the Master Servicer, the Master Servicer's estimate of
the costs and expenses of the preparation, completion, filing and recording the
Mortgage Loan documents described in the immediately preceding sentence,
including, without limitation, filing fees, recording fees and the reasonable
fees charged by
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such third parties. If any such Mortgage Loan document is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Mortgage Loan Seller shall promptly prepare or cause the preparation of a
substitute therefor or cure or cause the curing of such defect, as the case may
be, and shall thereafter deliver the substitute or corrected document to or at
the direction of the Master Servicer as the agent of the Trustee for recording
or filing, as appropriate, at the Mortgage Loan Seller's expense.
(f) If the amounts deducted by the Company with respect to
the Mortgage Loan Seller's share of the estimated Transaction Expenses or the
estimated preparation, completion, filing and recording expenses described in
the preceding paragraph are subsequently determined to be less than or greater
than the actual amounts owed to the Company by the Mortgage Loan Seller with
respect thereto, the Mortgage Loan Seller shall promptly reimburse the Company
or its designee for the amount of such deficiency, or the Company shall refund,
or cause to be refunded, to the Mortgage Loan Seller the amount of such excess,
as the case may be.
For purposes of this Agreement, the term "Transaction
Expenses" shall mean any and all costs and expenses reasonably incurred by the
Company, and certain other costs and expenses reasonably incurred by other
parties to the Securitization Transaction as set forth below, in connection
with the Securitization Transaction, including, without limitation: (i) the
fees and disbursements of the Company's attorneys (including such fees and
disbursements related to the Company's acquisition of the Mortgage Loans and
the Other Mortgage Loans); (ii) the itemized reasonable out-of-pocket expenses
of the Underwriters; (iii) the Trustee's fees and out-of-pocket expenses
(including the fees and disbursements of its attorneys) incurred in entering
into the Pooling and Servicing Agreement; (iv) the fees charged by the Rating
Agencies for rating any of the Certificates (including surveillance fees to be
prepaid to the Rating Agencies or any amount paid from the proceeds of the sale
of the Certificates, in connection with the closing of the Securitization
Transaction, to a Person for assuming the obligation to pay surveillance fees);
(v) the fees and disbursements of accountants and other professionals engaged
by the Company in connection with the Securitization Transaction; (vi) the SEC
filing fees with respect to the Company's shelf registration to the extent of
the principal amount of those Certificates which are publicly issued in
connection with the Securitization Transaction; (vii) the out-of-pocket
expenses of each of the Master Servicer and the Special Servicer (including the
fees and disbursements of their respective attorneys) incurred in connection
with the Securitization Transaction; (viii) state securities filing fees and
related expenses (including the fees and disbursements of attorneys engaged to
prepare state Blue Sky memoranda); (ix) the costs of preparing, printing and
delivering the Prospectus, the Prospectus Supplement
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or the Private Placement Memorandum, dated December 21, 1998, the Certificates,
including any fees incurred in connection with obtaining Cusip numbers for the
Certificates; (x) sales, transfer or similar taxes (including additions thereto)
arising in connection with the sale of the Certificates to the Underwriters or
investors; and (xi) the negative value of the Residual Certificates under the
Pooling and Servicing Agreement. Transaction Expenses shall not include other
loan-related expenses of the Mortgage Loan Seller, including, without
limitation, appraisals or environmental, engineering or other reports requested
by Rating Agencies or reasonably requested by other parties to the
Securitization Transaction or potential investors in the non-investment grade
Certificates.
2. Representations and Warranties and Covenants.
(a) The Mortgage Loan Seller hereby represents and warrants
to the Company and to the Trustee (for the benefit of the Certificateholders)
as the transferee of the Company, as of the date hereof being brought down in a
closing certificate that:
(i) The Mortgage Loan Seller is a
Delaware corporation duly organized, validly
existing and in good standing under the laws of the
State of Delaware, with the necessary corporate
power and authority to own its assets and conduct
its business as now being conducted, is duly
qualified as a foreign corporation in good standing
in all jurisdictions in which the ownership or lease
of its property or the conduct of its business
requires such qualification, except where the
failure to be so qualified would not have a material
adverse effect on the value of the Mortgage Loans
and the ability of the Mortgage Loan Seller to
perform its obligations hereunder, and the Mortgage
Loan Seller has taken all necessary corporate action
to authorize the execution, delivery and performance
of this Agreement by it, and has the necessary
corporate power and authority to execute, deliver
and perform this Agreement and all the transactions
of the Mortgage Loan Seller contemplated hereby,
including, but not limited to, the power and
authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this
Agreement;
(ii) This Agreement has been duly
authorized, executed and delivered by the Mortgage
Loan Seller and assuming the due authorization,
execution and delivery by the Company, will
constitute a legal, valid and binding obligation of
the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with its
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respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws
affecting the enforcement of creditors' rights
generally, and by general principles of equity
(regardless of whether such enforceability is
considered in a proceeding in equity or at law), or
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 Mortgage Loan Seller and the
performance of its obligations hereunder (1) will
not conflict with any provision of any law or
regulation to which the Mortgage Loan Seller is
subject, or conflict with, result in a breach of or
constitute a default under any of the terms,
conditions or provisions of any of the Mortgage Loan
Seller's organizational documents or any agreement
or instrument to which the Mortgage Loan Seller is a
party or by which it is bound, or any order or
decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on
any of the Mortgage Loan Seller's assets or
property, in each case which would materially and
adversely affect the ability of the Mortgage Loan
Seller to carry out the transactions contemplated by
this Agreement; and (2) does not require the consent
of any third party or such consent has been
obtained;
(iv) There is no action, suit,
proceeding or, to the knowledge of the Mortgage Loan
Seller, investigation pending and, to the knowledge
of the Mortgage Loan Seller there is no action,
suit, proceeding or investigation threatened against
the Mortgage Loan Seller in any court or by or
before any other governmental agency or
instrumentality which, in the Mortgage Loan Seller's
good faith and reasonable judgment, would materially
and adversely affect the validity of the Mortgage
Loans or the ability of the Mortgage Loan Seller to
enter into, or which would impair materially and
adversely the ability of the Mortgage Loan Seller to
carry out the transactions contemplated by, this
Agreement;
(v) The Mortgage Loan Seller is not
in default with respect to any order or decree of
any court or any order, regulation or demand of any
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federal, state, municipal or governmental agency,
which default might have consequences that, in the
Mortgage Loan Seller's good faith and reasonable
judgment, would materially and adversely affect the
financial condition or operations of the Mortgage
Loan Seller or its properties taken as a whole or
might have consequences that would materially and
adversely affect its performance hereunder;
(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 Mortgage Loan Seller
of or compliance by the Mortgage Loan Seller with
this Agreement or the consummation of the
transactions of the Mortgage Loan Seller
contemplated by this Agreement, other than those
which have been obtained by the Mortgage Loan
Seller;
(vii) The transfer, assignment and
conveyance of the Mortgage Loans by the Mortgage
Loan Seller to the Company is not subject to bulk
transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction;
(viii) Under generally accepted
accounting principles ("GAAP") and for federal
income tax purposes, the Mortgage Loan Seller will
report the transfer of the Mortgage Loans to the
Company as a sale of the Mortgage Loans to the
Company. The consideration received by the Mortgage
Loan Seller upon the sale of the Mortgage Loans to
the Company will constitute reasonably equivalent
value and fair consideration for the Mortgage Loans.
The Mortgage Loan 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
Company. The Mortgage Loan Seller is not selling the
Mortgage Loans to the Company with any intent to
hinder, delay or defraud any of the creditors of the
Mortgage Loan Seller; and
(ix) The Mortgage Loan Seller has
not dealt with any Person (other than the
Underwriters) that may be entitled, by reason of any
act or omission of the Mortgage Loan Seller, to any
commission or compensation in connection with the
sale of the Mortgage Loans to the Company hereunder.
(b) The Mortgage Loan Seller hereby makes to the Company and
to the Trustee (for the benefit of the
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Certificateholders) as the transferee of the Company the representations and
warranties contained in Schedule I, Schedule II, Schedule III and Schedule IV
with respect to each Mortgage Loan as of the date specified therein or, if no
such date is specified, as of the date hereof.
(c) If Credit Lease Loans are sold hereunder, the Mortgage
Loan Seller hereby covenants that it shall, within 10 days of the Closing Date,
notify the Lease Enhancement Policy Issuer that (i) both the Master Servicer
and Special Servicer shall be sent notices under each Lease Enhancement Policy,
and (ii) the Trustee c/o GE Capital Loan Services, Inc., as agent for the
Trustee for the benefit of the registered holders of Xxxxxxx Xxxxx Mortgage
Investors, Inc. Mortgage Pass-Through Certificates, Series 1998-C3, shall be
the loss payee or the named insured, as appropriate, under each Lease
Enhancement Policy.
3. Notice of Breach; Cure and Repurchase.
(a) Pursuant to the Pooling and Servicing Agreement, the
Mortgage Loan Seller and the Company shall be given notice of any Breach or
Document Defect that materially and adversely affects the value of such
Mortgage Loan or the interests of the holders of the Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage
Loan Seller shall, not later than 90 days after the Mortgage Loan Seller's
receipt of notice of such Breach or Document Defect (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 Section 860G(a)(3) of the Internal Revenue
Code of 1986, as amended (but without regard to the rule in Treasury Regulation
Section 1.860G-2(f)(2) that treats a defective obligation as a "qualified
mortgage" under certain circumstances) (a "Qualified Mortgage"), not later than
90 days after any party to this Agreement or to the Pooling and Servicing
Agreement discovering such Document Defect or Breach), if such Breach or
Document Defect shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein, cure
such Document Defect or Breach, as the case may be, in all material respects
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 the periods herein set forth, either (i) repurchase the affected
Mortgage Loan at the applicable Repurchase Price (as defined below) or (ii)
substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan
and pay the Trustee any Substitution Shortfall Amount in connection therewith;
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90-day period, such Document Defect or Breach does
not relate to any Mortgage Loan not being a Qualified Mortgage, and the
Mortgage Loan Seller has commenced and is diligently proceeding
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with the cure of such Document Defect or Breach within such 90-day period, the
Mortgage Loan Seller shall with respect to any such Document Defect or Breach,
have an additional 90 day period to complete such cure (or failing such cure, to
complete such repurchase or substitution); provided, further, that with respect
to such additional 90-day period, the Mortgage Loan Seller shall have delivered
an Officer's Certificate to the Master Servicer and the Trustee setting forth
the reason such Document Defect or Breach is not capable of being cured within
the initial 90-day period and what actions the Mortgage Loan Seller is pursuing
in connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such Document Defect or Breach will be cured within such
additional 90-day period. In connection with any Breach of the representation
and warranty set forth in clause (xliii) of Schedule I with respect to a group
of Mortgage Loans to the same borrower or to borrowers that are affiliated with
one another, the Mortgage Loan Seller may cure such Breach by repurchasing or
replacing with a Qualified Substitute Mortgage Loan or Loans one or more of
such Mortgage Loans, and the Mortgage Loan Seller may choose which Mortgage
Loan or Loans to repurchase or replace as long as the aggregate principal
balance of such Mortgage Loans not being repurchased by the Mortgage Loan
Seller determined as of the Cut-Off Date is less than or equal to the
applicable amount set forth on Exhibit I-XLIII(B) attached hereto. If the
affected Mortgage Loan is to be repurchased, the Mortgage Loan Seller shall, on
the date of repurchase, remit the Repurchase Price by wire transfer of
immediately available funds in accordance with the directions of the Master
Servicer as agent for the Trustee. If the affected Mortgage Loan is to be
substituted, (I) the Mortgage Loan Seller shall, on the date of substitution,
remit the Substitution Shortfall Amount by wire transfer of immediately
available funds in accordance with the directions of the Master Servicer as
agent for the Trustee; (II) no such substitution may be made in any calendar
month after the Determination Date for such month; (III) the Mortgage Loan
Seller shall, on the date of substitution, certify in writing to the Trustee
and the Master Servicer that the Qualified Substitute Mortgage Loan(s) meets
all of the requirements of the definition of Qualified Substitute Mortgage Loan
in the Pooling and Servicing Agreement and that the representations and
warranties set forth in Section 2 are true and correct with respect to the
Mortgage Loan Seller and such Qualified Substitute Mortgage Loan(s) (which
includes a mortgage loan schedule describing such Qualified Substitute Mortgage
Loan(s) substantially in the form of Exhibit A)) and shall agree with the
Trustee in writing to be subject to the terms and provisions of the Mortgage
Loan Seller under Sections 3, 7, 8, 9, 10, 11, 12, 13, 14 and 15 with respect
to such Qualified Substitute Mortgage Loan(s) as of the date of substitution;
(IV) scheduled payments of principal and interest due with respect to any such
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of the Trust Fund; and (V) scheduled payments of principal and interest
due with respect to any such Qualified Substitute Mortgage Loan on or prior to
the related date of substitution shall not be part of
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the Trust Fund, and the Mortgage Loan Seller shall be entitled to receive such
payments promptly following receipt thereof by the Master Servicer as the agent
of the Trustee. The delivery of an original pro forma or specimen title
insurance policy or an original marked, redated and recertified commitment to
issue a policy of lender's title insurance in lieu of the delivery of the actual
policy of lender's title insurance shall not be considered a Document Defect
with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
The "Repurchase Price" with respect to any Mortgage Loan or
REO Loan to be repurchased pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to the term
"Purchase Price" in the Pooling and Servicing Agreement without giving effect
to any amendment thereto unless the Mortgage Loan Seller has given its consent
to such amendment in writing and signed by a duly authorized officer of the
Mortgage Loan Seller.
(c) Upon any substitution for or repurchase of a Mortgage
Loan contemplated by Section 3(b) above, the Trustee, the Custodian, the Master
Servicer and the Special Servicer shall each tender to the Mortgage Loan
Seller, all portions of the Mortgage File, the Servicing File and other
documents pertaining to such Mortgage Loan possessed by it, and each document
that constitutes a part of the Mortgage File that was endorsed or assigned to
the Trustee shall be endorsed or assigned, as the case may be, to the Mortgage
Loan Seller in each case without recourse, representation or warranty, as shall
be necessary to vest in the Mortgage Loan Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto).
(d) Section 3(b) of this Agreement provides the sole and
exclusive remedy available to the Company, the Trustee on behalf of the
Certificateholders or any other party, respecting any Document Defect or any
Breach.
(e) Subject to the terms of this Agreement, and
notwithstanding any restrictive or qualified endorsement on any Mortgage Note,
assignment of Mortgage or assignment of Assignment of Leases, the Mortgage Loan
Seller hereby acknowledges the assignment by the Company to the Trustee, as
trustee under the Pooling and Servicing Agreement, for the benefit of the
Certificateholders, of the representations and warranties contained herein and
of the obligation of the Mortgage Loan Seller to cure, substitute for or
repurchase a Mortgage Loan pursuant to this Section. The Trustee or its
designee may enforce such obligations as provided in Section 8 hereof.
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4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the
Mortgage Loan Seller, as of the date hereof (or such other date as is specified
in the related representation or warranty), as follows:
(i) The Company is a corporation
duly organized, validly existing and in good
standing under the laws of the State of Delaware,
with full corporate power and authority to own its
assets and conduct its business, is duly qualified
as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its
property or the conduct of its business requires
such qualification, except where the failure to be
so qualified would not have a material adverse
effect on the ability of the Company to perform its
obligations hereunder, and the Company has taken all
necessary action to authorize the execution,
delivery and performance of this Agreement by it,
and has the power and authority to execute, deliver
and perform this Agreement and all the transactions
of the Company contemplated hereby;
(ii) This Agreement has been duly
authorized, executed and delivered by the Company
and constitutes a valid and binding obligation of
the Company, enforceable against the Company in
accordance with its terms, except as such
enforcement may be limited by bankruptcy,
reorganization, insolvency, receivership, moratorium
and other similar laws affecting the enforcement of
creditors' rights generally and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in
equity or at law);
(iii) The execution and delivery of
this Agreement by the Company and the performance of
its obligations hereunder will not conflict with any
provision of any law or regulation to which the
Company is subject, or conflict with, result in a
breach of or constitute a default under any of the
terms, conditions or provisions of any of the
Company's organizational documents or any agreement
or instrument to which the Company is a party or by
which it is bound, or any law, rule, regulation,
judgment, writ, injunction, order or decree
applicable to the Company, or result in the creation
or imposition of any lien on any of the Company's
assets or property, in
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each case which would materially and adversely affect
the ability of the Company to carry out the
transactions contemplated by this Agreement;
(iv) There is no action, suit,
proceeding or, to the knowledge of the Company,
investigation pending and, to the knowledge of the
Company, there is no action, suit, proceeding or
investigation threatened against the Company 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 Company contemplated herein, or which would
be likely to impair materially the ability of the
Company to perform under the terms of this
Agreement;
(v) The Company 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 financial
condition or operations of the Company or its
properties taken as a whole or might have
consequences that would materially and adversely
affect its performance hereunder;
(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 Company of, or
compliance by the Company with, this Agreement or
the consummation of the transactions of the Company
contemplated by this Agreement other than those that
have been obtained by the Company; and
(vii) Under GAAP and for federal
income tax purposes, the Company will report the
transfer of the Mortgage Loans by the Mortgage Loan
Seller to the Company as a sale of the Mortgage
Loans to the Company.
5. Company's Conditions to Closing. The obligations of the
Company under this Agreement to purchase the Mortgage Loans and pay the
Purchase Price on the Closing Date shall be subject to the satisfaction, on or
before the Closing Date, or such other date specified herein, of the following
conditions:
(a) The obligations of the Mortgage Loan Seller required to
be performed by it at or prior to the Closing Date pursuant to the terms of
this Agreement shall have been duly performed and complied with and all of the
representations and
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warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct in all material respects, and no event shall have occurred which, with
notice or the passage of time, or both, would constitute a material default
under this Agreement.
(b) The Company or its designee shall have received all of
the following closing documents, in such forms as are agreed upon and
acceptable to the Company and in form and substance satisfactory to the
Company, the Underwriters and their respective counsel, duly executed by all
signatories other than the Company as required pursuant to the respective terms
thereof:
(i) with respect to each Mortgage
Loan, the related Mortgage File and Servicing File,
which Mortgage Files shall be delivered to and held
by the Trustee and the Master Servicer,
respectively, on behalf of the Company , provided,
however, that as provided in this Agreement and in
Section 2.01 of the Pooling and Servicing Agreement,
the Mortgage Loan Seller may deliver certain
Mortgage File documents (not including the Mortgage
Notes and the related endorsements, allonges and
lost note indemnities) after the Closing Date;
(ii) the final Mortgage Loan
Schedule;
(iii) an officer's certificate from
the Mortgage Loan Seller dated as of the Closing
Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Mortgage Loan
Seller's counsel, subject to its customary
exceptions and carve-outs for opinions of this type,
in form and substance reasonably acceptable to the
Company and its counsel and the Rating Agencies,
which states in substance the opinions set forth on
Exhibit C hereto; and
(v) such other documents,
certificates and opinions as the Company may
reasonably request to effectuate the transactions
contemplated by this Agreement.
(c) The Mortgage Loan Seller hereby agrees to furnish such
other information, documents, certificates, letters or opinions with respect to
the Mortgage Loans or itself as may be reasonably requested by the Company in
order for the Company to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the
Underwriting Agreement, the Certificate Purchase Agreement, the Pooling and
Servicing Agreement or this Agreement.
-13-
6. Indemnification and Contribution.
(a) The Mortgage Loan Seller shall indemnify and hold
harmless the Company, the Underwriters, their respective officers and
directors, and each person, if any, who controls the Company or the
Underwriters 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, 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 relating to the Mortgage Loans, the related Mortgagors, the
related Mortgaged Properties or the Mortgage Loan Seller contained in (A) the
Preliminary Prospectus Supplement, the Prospectus Supplement and the Memorandum
(insofar as the following are incorporated as part of the Memorandum) under the
headings "SUMMARY OF PROSPECTUS SUPPLEMENT -- The Mortgage Loan Seller," "--The
Mortgage Loans--Security for the Mortgage Loans," "--Property Types,"
"--Geographic Concentrations," "--Prepayment Provisions," "--Borrower
Concentration," "RISK FACTORS -- Certain Risk Factors Associated with the
Mortgage Loans" or "DESCRIPTION OF THE MORTGAGE POOL," the geographic
distribution map set forth on the inside cover page of either the Preliminary
Prospectus Supplement or the Prospectus Supplement, Annex A or Annex D to the
Preliminary Prospectus Supplement, Annex A or Annex D to the Prospectus
Supplement, the Diskette (as defined herein) or, insofar as they are required
to be filed as part of the Registration Statement pursuant to the No-Action
Letters, any Computational Materials, ABS Term Sheets or Collateral Term Sheets
with respect to the Registered Certificates, or in any revision or amendment of
or supplement to any of the foregoing or (B) any items similar to Computational
Materials, ABS Term Sheets or Collateral Term Sheets forwarded to prospective
investors in the Non-Registered Certificates or (C) the Master Tape (as defined
herein) (it being herein acknowledged that the Master Tape was used to prepare
the Preliminary Prospectus Supplement, including, without limitation, Annex A
and Annex D thereto, the Prospectus Supplement, including, without limitation,
Annex A and Annex D thereto, the Memorandum, the Diskette, the Computational
Materials, ABS Term Sheets and Collateral Term Sheets with respect to the
Registered Certificates and any items similar to Computational Materials, ABS
Term Sheets and Collateral Term Sheets forwarded to prospective investors in
the Non-Registered Certificates), or (ii) arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
-14-
but, in the case of any Computational Materials, ABS Term Sheets and Collateral
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials, ABS Term Sheets and Collateral Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, only if and to the
extent that any such untrue statement or alleged untrue statement or omission or
alleged omission (I) arises out of or is based upon an untrue statement or
omission with respect to the Mortgage Loans, the related Mortgagors or the
related Mortgaged Properties contained in the Master Tape, (II) is contained in
the information regarding the Mortgage Loans, the related Mortgagors, the
related Mortgaged Properties or the Mortgage Loan Seller set forth in the
Preliminary Prospectus Supplement, the Prospectus Supplement or the Memorandum
(insofar as the following are incorporated as part of the Memorandum) under the
headings "SUMMARY OF PROSPECTUS SUPPLEMENT -- The Mortgage Loan Seller," "--The
Mortgage Loans--Security for the Mortgage Loans," "--Property Types,"
"--Geographic Concentrations," "--Prepayment Provisions," "--Borrower
Concentration," "RISK FACTORS -- Certain Risk Factors Associated with the
Mortgage Loans" or "DESCRIPTION OF THE MORTGAGE POOL," [the geographic
distribution map set forth on the inside cover page of either the Preliminary
Prospectus Supplement or the Prospectus Supplement], or Annex A or Annex D to
the Prospectus Supplement; provided that the foregoing were provided to the
Mortgage Loan Seller for its review, or (III) arises out of or is based upon a
breach of any of the representations and warranties of the Mortgage Loan Seller
set forth in or made pursuant to Section 2; provided that the indemnification
provided by this Section 6 shall not apply to the extent that such untrue
statement or omission was made as a result of an error in (x) the manipulation
of, or (y) any calculations based upon, or (z) any aggregation (other than an
aggregation made in the Master Tape by the Mortgage Loan Seller) of, the
information regarding the Mortgage Loans, the related Mortgagor, the related
Mortgaged Properties or the Mortgage Loan Seller set forth in the Master Tape or
in Annex A or Annex D to the Preliminary Prospectus Supplement or in Annex A or
Annex D to the Prospectus Supplement, including without limitation, the
aggregation of such information with comparable information relating to the
Other Mortgage Loans conveyed by the Other Mortgage Loan Sellers; provided
further that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 6 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any Registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale of such Registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact
-15-
or the omission or alleged omission to state a material fact contained in such
Preliminary Prospectus Supplement which was the basis of any such claim was
corrected in the Prospectus Supplement. In addition, the Mortgage Loan Seller
agrees to reimburse any indemnified party with respect to any and all expenses
whatsoever, as incurred (including the fees and disbursements of such
indemnified party's counsel), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or proceeding by any
government agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission or any such alleged untrue
statement or omission. This indemnity agreement will be in addition to any
liability which the Mortgage Loan Seller may otherwise have.
For purposes of this Agreement, "Registration Statement"
shall mean the registration statement No. 333-38073 filed by the Company on
Form S-3, including without limitation exhibits thereto and information
incorporated therein by reference; "Prospectus" shall mean the prospectus dated
February 25, 1998, as supplemented by the prospectus supplement dated December
17, 1998 (the "Prospectus Supplement"), relating to the Registered
Certificates, including all annexes thereto; the "Preliminary Prospectus
Supplement" shall mean the Preliminary Prospectus Supplement dated December 7,
1998, relating to the Registered Certificates, including all annexes thereto;
"Memorandum" shall mean the private placement memorandum dated December 21,
1998, relating to the Non-Registered Certificates; "Registered Certificates"
shall mean, collectively, the Certificates denominated as the Class A-1, Class
A-2, Class A-3, Class IO, Class B, Class C, Class D and Class E Certificates;
"Non-Registered Certificates" shall mean the Certificates other than the
Registered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody &
Co. Incorporated, and Xxxxxx Structured Asset Corporation and the no-action
letter dated May 24, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); "ABS Term Sheets" and "Collateral Term Sheets" shall have the
meanings 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 either the diskette attached to
the Preliminary Prospectus Supplement (together with the Prospectus) or the
diskette attached to each of the Prospectus Supplement (together with the
Prospectus) and the Memorandum; and the "Master Tape" shall mean the
compilation of information and data regarding the Mortgage Loans and the Other
Mortgage Loans covered by the Independent Accountants' Reports on Applying
Agreed-Upon Procedures dated December 17, 1998 and December 21, 1998 and
-16-
rendered by PriceWaterhouseCoopers LLP (a "hard copy" of which Master Tape was
initialed on behalf of the Mortgage Loan Seller and the Company).
(b) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 6, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 6. 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 at
its own expense 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
reasonably satisfactory to such indemnified party; provided that if the
defendants in any such action include both the indemnified party and the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert the legal defenses available to such
indemnified party or parties 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 to
assume the defense of such action and approval by the indemnified party of
counsel (which approval shall not be unreasonably withheld), the indemnifying
party will not be liable to such indemnified party for legal or other expenses
incurred by the indemnified party in connection with the defense thereof unless
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 counsel, in addition to its own
counsel, (together with one local counsel, if applicable), for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances). No indemnifying party shall, without the prior written consent
of the related indemnified party, which consent shall not be unreasonably
withheld or delayed, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 by such indemnified party (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of such indemnified
party from all
-17-
liability arising out of such litigation, investigation, proceeding or claim
and (ii) 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. The
indemnifying party shall not be liable under any settlement or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 by an indemnified party which
is effected without the prior written consent of such indemnifying party, which
consent will not be unreasonably withheld or delayed; provided, however, that
if at any time an indemnified party shall have requested the indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, the
indemnifying party agrees that it shall be liable for such settlement,
compromise or consent to the entry of judgment effected without its written
consent, if (A) such settlement, compromise or consent to the entry of judgment
is entered into more than 60 days after the receipt by the indemnifying party
of the aforesaid request, (B) the indemnifying party shall have received notice
of the terms of such settlement, compromise or consent to the entry of judgment
at least 45 days prior to such settlement, compromise, or consent to the entry
of judgment being entered into and (C) the indemnifying shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement, compromise of consent to the entry of judgment.
(c) If the indemnification provided for in this Section 6 is
due in accordance with its terms but is for any reason unavailable to, or
insufficient to hold harmless, an indemnified party under this Section 6, then
the Mortgage Loan Seller and such indemnified party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or expenses as incurred, referred to in subsection
(a) or (b) above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Mortgage Loan Seller on the one hand and such
indemnified party on the other hand from the offering and sale of the
Certificates or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Mortgage Loan Seller on the one hand and such indemnified party on the
other in connection with the statement or omission that resulted in such
losses, claims, damages, liabilities and expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Mortgage Loan Seller on the one hand and such indemnified party on the other
hand in connection with the offering and sale of the Certificates shall be
deemed to be in the same respective proportion as the total proceeds received
or contemplated to be received by the Mortgage Loan Seller from the offering
and sale of the Certificates, whether or not such offering and sale are
consummated, bears to the proceeds
-18-
retained or contemplated to be retained by such indemnified party with respect
to the offering and sale of the Certificates. The relative fault 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 the Mortgage Loan Seller or
such indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Mortgage Loan Seller and the Company agree that it would not be
just and equitable if contribution pursuant to this subsection (c) were to be
determined by per capita allocation or by any other method of allocation that
does not take account of the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this subsection (c) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating,
preparing or defending against litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened in writing, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. In the event that any expenses so paid by the
Mortgage Loan Seller are subsequently determined not to be required to be borne
by the Mortgage Loan Seller hereunder (whether in connection with
indemnification pursuant to Section 6(a) or contribution pursuant to this
subsection (c)), the indemnified party which received such payment shall
promptly refund the amount so paid to the Mortgage Loan Seller. 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
also guilty of such fraudulent misrepresentation. For purposes of this
subsection (c), each person, if any, who controls the Company within the
meaning of Section 15 of 1933 Act or Section 20 of the 1934 Act shall have the
same rights to contribution as the Company, and each person, if any, who
controls an Underwriter 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 such
Underwriter.
(d) Each Underwriter is an intended third party beneficiary
of this Section 6.
7. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Company, will be mailed,
hand delivered, couriered or sent by facsimile transmission and confirmed at
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxxx X.
XxXxxxxx, fax number: (000) 000-0000 or, if sent to the Mortgage Loan Seller,
will be mailed, hand delivered, couriered or sent by facsimile transmission and
confirmed to it at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxxx X. Xxxxxxxxxxx, Fax Number: (000) 000-0000.
-19-
8. Trust as Beneficiary. The representations, warranties and
agreements made by the Mortgage Loan Seller in Section 2 of this Agreement are
also made for the benefit of, and may also be enforced by or on behalf of, the
Trustee (for the benefit of the Certificateholders) as the assignee of the
Company, and the Master Servicer or the Special Servicer, as provided in the
Pooling and Servicing Agreement, as agent of the Trustee to the same extent
that the Company has rights against the Mortgage Loan Seller under this
Agreement in respect such representations, warranties and agreements.
9. Miscellaneous. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. This Agreement may be executed
in any number of counterparts, each of which shall for all purposes be deemed
to be an original and all of which shall together constitute but one and the
same instrument. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and permitted assigns,
and no other person will have any right or obligation hereunder, other than as
provided herein.
10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Mortgage Loan Seller and the
Company submitted pursuant hereto, shall remain operative and in full force and
effect and shall survive the transfer and sale of the Mortgage Loans to the
Company and by the Company to the Trustee notwithstanding any language to the
contrary contained in any endorsement of any Mortgage Loan; provided that the
representations, warranties and agreements (other than Section 6) shall
terminate upon the termination of the Pooling and Servicing Agreement.
11. Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, this Agreement shall be ineffective
only to such extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the
Company agree to execute and deliver such instruments and take such actions as
the other party may, from time to time, reasonably request in order to
effectuate the purpose and to carry out the terms of this Agreement.
13. Amendments. This Agreement supercedes all prior
agreements and understandings between the parties hereto relating to the
subject matter hereof. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by a duly
authorized officer of the party against whom enforcement of such change,
waiver, discharge or termination is sought to be enforced. This Agreement may
not be changed or waived in any manner which would have a material
-20-
adverse effect on Certificateholders without the prior written consent of the
Trustee.
14. Mortgage Loan Seller's Costs. Except as specifically
provided in this Agreement, the Mortgage Loan Seller shall pay all costs and
expenses incidental to the performance of its duties and obligations under this
Agreement, including, without limitation, costs and expenses incurred by the
Mortgage Loan Seller (including the fees and disbursements of the Mortgage Loan
Seller's counsel) in reviewing, and providing opinions relating to, this
Agreement, the Pooling and Servicing Agreement, the Prospectus Supplement, the
Memorandum, the Preliminary Prospectus Supplement and the Preliminary
Memorandum and the Mortgage Loan Seller's out-of-pocket expenses related to
meetings with the Rating Agencies or other circumstances in which the Company
or an Underwriter specifically requests the Mortgage Loan Seller's assistance.
The Mortgage Loan Seller shall also pay all recording fees, filing fees, fees
for title policy endorsements and continuations and other charges related to
the transfer of the Mortgage Loans to the Trustee as the transferee of the
Company.
15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall, for all purposes, be deemed to be
an original and all of which shall together constitute but one and the same
agreement.
[Signature page follows]
-21-
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
XXXXXXX XXXXX MORTGAGE CAPITAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Authorized Signatory
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL
NO. PROPERTY NAME PROPERTY TYPE
---------- --------------------------------- ---------------
XXXX-000 0 Xxxxx Xxxxxx
XXXX-000 0000 Xxxxxxxx Xxxxxx
XXXX-000 0 Xxxxxxxxxx Xxxxxx
XXXX-000 0000 Xxxxxxxxx Apartments Multifamily
MLMI-007 0000 Xxxxxxxxx Xxxx Industrial
MLMI-010 Xxxxxxx Furniture Retail
MLMI-011 Bentworth Apartments Multifamily
MLMI-012 Xxxxxxx-Brighton Shops Retail
MLMI-019 Corr-Pro (Mystic) Warehouse Industrial
MLMI-021 Crown Gardens Apartments Multifamily
MLMI-022 Xxxxx Xxxx Apartments Multifamily
MLMI-023 Deerfield Apartments Multifamily
MLMI-024 East 61st Street Brownstone Multifamily
MLMI-028 Gazebo Inn Hospitality
MLMI-030 Heritage Apartments Multifamily
MLMI-031 Xxxxxxx Xxxxx Shopping Center Retail
MLMI-032 Xxxxxxxx Plaza Apartments Multifamily
MLMI-033 MeadowCrest Apartments Multifamily
MLMI-035 X'Xxxxx Industrial Center Industrial
MLMI-038 Xxxxxx-Good Samaritan Center Mixed Use
MLMI-041 Ramada Inn Airport Hospitality
MLMI-042 Xxxxx - Wildcreek Apartments Multifamily
MLMI-045 Sommerset Apartments Multifamily
MLMI-048 The Ansonia Commercial Retail
MLMI-050 The Xxxxxxx Multifamily
MLMI-051 The Wic Building Industrial
MLMI-052 Xxxxxxx Apartments Multifamily
MLMI-053 Village at Brookside Apartments Multifamily
MLMI-056 Willowbrook Apartments Multifamily
MLMI-060 Woodhollow Apartments Multifamily
XXXX-000 Xxxxxxxx Xxxxxxx Xxxxxx
XXXX-000 Xxxxxx Mall Retail
MLMI-067 Phelan Village Shopping Center Retail
MLMI-069 Argonne Avenue Apts Multifamily
MLMI-070 Sundown Apartments Multifamily
MLMI-071 Woodsdale Apartments Multifamily
MLMI-072 00000 Xxxxxx Xxxxxx Multifamily
MLMI-073 12460 Gladstone Industrial
MLMI-074 0000 Xxxxx Xxxx Xxxxxx Multifamily
CONTROL
NO. ADDRESS CITY STATE ZIP CODE
---------- ------------------------------------------------------ --------------- ------- ---------
MLMI-001 0 Xxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
MLMI-003 0000 Xxxxxxxx Xxx Xxxx XX 00000
MLMI-004 0 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
MLMI-005 0000 Xxxxxxxxx Xxxxxxx XX 00000
MLMI-007 0000 Xxxxxxxxx Xxxx and 0000 Xxxxx 00xx Xxxxxx Xxxxxxxxxxxx XX 00000
MLMI-010 0000 X. Xxxxxxxx Xxxxxxx Xxxxxxxxxx XX 00000
MLMI-011 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxx XX 00000
MLMI-012 000-000 X. Xxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
MLMI-019 000 XX 00xx Xxxxxx Xxxxxx XX 00000
MLMI-021 0000 Xxxxxxxxx Xxxxxxx XX 00000
MLMI-022 0000 Xxxxxxx Xxxxx Xxxxxxxxx XX 00000
MLMI-023 000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
MLMI-024 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
MLMI-028 0000 Xxxx Xxxxxxx 00 Xxxxxxx XX 00000
MLMI-030 0000-0000 Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
MLMI-031 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
MLMI-032 000 X. Xxxxxxxx Xxxxx Xxx Xxxxxxx XX 00000
MLMI-033 0000 Xxxxxx Xxxx Xxx Xxxxxxx XX 00000
MLMI-035 0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
MLMI-038 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-041 00 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
MLMI-042 0000 Xxxx Xxxxx Xxxxxx XX 00000
MLMI-045 000 X. Xxxxxx Xxxxx Xx Xx. Xxx Xxxxxx XX 00000
MLMI-048 0000 Xxxxxxxx Xxx Xxxx XX 00000
MLMI-050 0000 Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-051 0000 Xxxxxxxxxxxx Xxx Xxxxxxxxxxxx XX 00000
MLMI-052 0000 XxXxxxx Xxxxxx Xx Xxxx XX 00000
MLMI-053 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
MLMI-056 00000 X. X. Xxxxxx Xxxx Xxxxxxxxx XX 00000
MLMI-060 000 Xxxxxxx 000 Xxxx Xxxxxxx XX 00000
MLMI-062 19101-19151 Xxxxxxxxxx Xxxxxx & 00000-00000Xxxxx Xx. Xxxxxxxx XX 00000
MLMI-064 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
MLMI-067 0000-0000 Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-069 000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
XXXX-000 Xxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-071 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
MLMI-072 00000 Xxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
MLMI-073 12460 Gladstone Xxxxxx XX 00000
MLMI-074 0000 Xxxxx Xxxx Xxxxxx Xxxxx Xxx XX 00000
A-1
MORTGAGE LOAN SCHEDULE
CONTROL
NO. PROPERTY NAME PROPERTY TYPE
---------- ----------------------------------- ---------------
MLMI-075 0000 Xxxxxx Xxxx Mixed Use
XXXX-000 Xxxxxxxx Xxxxxx
XXXX-000 Xxxxxx Xxxxx Xxxxxx
XXXX-000 XXX Properties LLC Retail
MLMI-079 Cherry Hills Apartments Multifamily
MLMI-080 Xxxxxxxx Family Trust Retail
MLMI-081 Gabela Partners Industrial
MLMI-082 Xxxxxx Retail
MLMI-083 Xxxxx Xxxx Trustee Industrial
MLMI-084 Parkside Plaza, LLC Mixed Use
MLMI-085 Patio World Retail
MLMI-086 Rainbow Center Retail
MLMI-087 Xxxx X. Xxxx Family Trust Industrial
MLMI-088 Xxxxxx Industrial
MLMI-089 Spring Valley Plaza Retail
MLMI-090 Xxxxxx Xxxxxxx Retail
MLMI-100 Hastings Entertainment Retail
MLMI-101 0000 Xxxxxx Xxxxxxxxx Industrial
MLMI-102 Embassy Suites - Oklahoma City Hospitality
MLMI-104 BJ's Wholesale Club Retail
MLMI-105 Country Club Care Center Healthcare
MLMI-106 Crown Care Center Healthcare
MLMI-107 1401 Xxxxxxxx St. - Coca Cola Xxxxxx
XXXX-000 Xxxxxx Xxxxxx Xxxxxx
XXXX-000 Xxxxxxxxxx Xxxxxx Retail
MLMI-110 Station Plaza Shopping Center Retail
MLMI-111 Shenandoah Square Shopping Center Retail
MLMI-112 Xxxx and Xxxxxxx Center Retail
MLMI-114 Oak Lawn Promenade Retail
MLMI-115 Santa Xxxxxx Sav-On Retail
MLMI-116 Seneca Park Plaza Shopping Center Retail
MLMI-117 Willowbrook Court Shopping Center Retail
MLMI-118 Waterbury Crossing Retail
XXXX-000 Xxx XxXxxxx Xxxxxxxx Xxxxxx
XXXX-000 Office Max Retail
MLMI-124 Fairfield Inn - Beaverton Hospitality
MLMI-125 Courtyard by Marriott - Newburgh Hospitality
MLMI-126 Albany Thruway Courtyard Hospitality
MLMI-127 Fairfield Inn - Henrietta Hospitality
CONTROL
NO. ADDRESS CITY STATE ZIP CODE
---------- ------------------------------------------ ----------------- ------- ---------
MLMI-075 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-076 0000 0xx Xxxxxx Xxxxx Xxxxxx XX 00000
MLMI-077 00000 Xxxxxxx Xxx Xxx Xxxx XX 00000
MLMI-078 000 Xxxx Xxxxxx X Xxxxxxxxx XX 00000
MLMI-079 0000 X 0xx Xxxxxx Xxxxxxx XX 00000
MLMI-080 000 X. Xxxx Xxx Xxxxxx XX 00000
MLMI-081 00000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
MLMI-082 0000-0000 Xxxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
MLMI-083 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
MLMI-084 0000-0000 Xxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000
MLMI-085 00000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
MLMI-086 0000 X. Xxxxxxx Xxxx. Xxx Xxxxx XX 00000
MLMI-087 0000-0000 Xxxxxxxx Xxxxxx Xxx Xxxxx XX 00000
MLMI-088 0000 X. Xxxxx Xxxx Xxx Xxxxx XX 00000
MLMI-089 0000 X.Xxxxxx Xxxxxx Xx Xxxxxxxxxx XX 00000
MLMI-090 000 X. Xxxxxxxx Xxxx Xxxxxxxxx Xxxxx XX 00000
MLMI-100 0000 Xxx Xxxxxx Xxxx. Xxx Xxxxxx XX 00000
MLMI-101 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
MLMI-102 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
MLMI-104 0000 Xxx Xxxx Xxxx Xxxxxxxxxxxx XX 00000
MLMI-105 000 Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000
MLMI-106 0000 Xxxx Xxx Xxxxxx Xxxxxxxxxxxxx XX 00000
MLMI-107 0000 X. Xxxxxxxx Xx Xxxxxxxxx XX 00000
MLMI-108 000-000 Xxxx 0xx Xxxxxx Xxx Xxxxx XX 00000
MLMI-109 000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-110 13408 - 00000 Xxxxxxxxx Xxxxx Xxxxxxx xx Xxxxxxxxxx XX 00000
MLMI-111 000-000 Xxxxxxx Xxxxx Xxxx Xxxxxxxx XX 00000
MLMI-112 000 Xxxx Xxxx Xxxxxx Xxxxxx XX 00000
MLMI-114 0000-0000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
MLMI-115 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
MLMI-116 00000-00000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-117 00000 Xxxxxxx Xxxxxxx Xxxxxxx XX 00000
MLMI-118 000 Xxxx Xxxxxx Xxxxxxxxx XX 00000
MLMI-119 00000 Xx Xxxxx Xxx Xxx Xxxxxxx XX 00000
MLMI-120 0000 Xxxxxxx Xxx. Xxxxxxx XX 00000
MLMI-124 00000 X.X. Xxxxxxx Xxxxx Xxxxxxxxx XX 00000
MLMI-125 Xxx Xxxxxxx Xxxxx Xxxxxxxx XX 00000
MLMI-126 0000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
MLMI-127 0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
A-2
MORTGAGE LOAN SCHEDULE
CONTROL
NO. PROPERTY NAME PROPERTY TYPE
---------- ---------------------------------------------- ---------------
MLMI-128 Quality Inn City Center Hospitality
MLMI-133 Sammamish Ridge Multifamily
MLMI-134 Kenmore Estates Multifamily
MLMI-135 Independence Green Apartments Multifamily
MLMI-139 Walkers Ridge Multifamily
XXXX-000 Xxxxxxxx Xxxxx Xxxxxxxxxxx
XXXX-000 Chapelcroft Multifamily
MLMI-142 Aspen Shadows Multifamily
MLMI-143 Antelope Manor Apartments Multifamily
MLMI-144 AAAABCO Xxxxxx Mini Storage Mini Storage
MLMI-146 49er Mini Storage Mini Storage
MLMI-152 Chateau Brickyard Healthcare
MLMI-153 Holiday on the Bay Multifamily
MLMI-160 PetsMart, Inc. CTL
MLMI-162 Rite Aid CTL
MLMI-161 Xxxxxx Xxxxxx CTL
MLMI-163 Xxxxxx Xxxxxx CTL
XXXX-000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxx
XXXX-000 00000 Xxxxxxxx Multifamily
MLMI-092 00000 Xxxxxxxx Xxxxxx Multifamily
MLMI-093 0000 Xxxx Xxxxxx Multifamily
MLMI-094 0000 Xxxxxxxx Xxxxxx Multifamily
MLMI-095 0000 Xxxx Xxxxxx Multifamily
MLMI-096 Pine Valley Court (Colony Xxxxxx) Apartments Multifamily
MLMI-097 Doheny Drive Apartments Multifamily
MLMI-098 Hacienda xx Xxxxxxxxx Multifamily
MLMI-099 Peachtree & Willow Lake Apartments Multifamily
MLMI-008 Alexander House Apartments Multifamily
MLMI-020 Crosspointe Vista Apartments Multifamily
MLMI-034 Myrtle Cove Apartments Multifamily
MLMI-047 Xxxx Xxxx Apartments Multifamily
MLMI-049 The Atrium Cellini Apartments Multifamily
MLMI-055 Westcliff Apartments Multifamily
MLMI-057 Wilshire Village Shopping Center Retail
MLMI-058 Windsor Court Apartments Multifamily
MLMI-002 000 Xxxx 00xx Xxxxxx Retail
MLMI-006 000 Xxxx Xxxxxx Xxxxxx Xxxxxx
XXXX-000 Xxxxxxxxx Xxxx I Multifamily
MLMI-013 Bishops Landing Apartments Multifamily
CONTROL
NO. ADDRESS CITY STATE ZIP CODE
---------- ----------------------------------------- ------------------ ------- ---------
MLMI-128 000 Xxxx 000 Xxxxx Xxxx Xxxx Xxxx XX 00000
MLMI-133 00000 Xxxxxxx Xxx Xxxxxxx XX 00000
MLMI-134 00000 00xx Xxxxxx XX Xxxxxxx XX 00000
MLMI-135 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
MLMI-139 Xxxxxx Blvd. Xxx Xxxx Xxxxx Xxxx Xxxxxxxx XX 00000
MLMI-140 000 0xx Xxxxxx, XX XX Xxxxxxx XX 00000
MLMI-141 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
MLMI-142 0000 Xxxx Xxxx Xxxx Xxxxxxxxx XX 00000
MLMI-143 0000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
MLMI-144 000 Xxxxxxxxxx Xxxxxxxxx XX 00000
MLMI-146 000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
MLMI-152 0000 Xxxxx 0000 Xxxx Xxxx Xxxx Xxxx XX 00000
XXXX-000 Xxxxxx Xxxxx Xxxx Xxxx Xxxxx XX 00000
MLMI-160 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
MLMI-162 0000 Xxxxx Xxxxxx Xxxx. Xxxxxxxxxx XX 00000
MLMI-161 0000 X. 00xx Xxxxxx Xxxxxxxx XX 00000
MLMI-163 0000 Xxxx Xxxxx Xxxx Xxxxxxx XX 00000
MLMI-164 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
MLMI-091 00000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx XX 00000
MLMI-092 00000 Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
MLMI-093 0000 Xxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
MLMI-094 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-095 0000 Xxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
MLMI-096 000 Xxxxxxxxx Xxxxxxxxx Xx Xxxxxxxxx XX 00000
MLMI-097 000-000 Xxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
MLMI-098 000 Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
MLMI-099 000 Xxxxxxx Xxxxxx & 000 Xxxxxxxxx Xxxx Xxxxxxxx XX 00000
MLMI-008 0000 Xxxxxxx Xxxxxxx XX 00000
MLMI-020 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
MLMI-034 9760 & 0000 Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-047 0000-0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
MLMI-049 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000
MLMI-055 0000 Xxxxx Xxxxxx Xxxxxxxx XX 00000
MLMI-057 0000 X. Xxxxxxxxxxx Xxxx Xxxxxx XX 00000
MLMI-058 000 X. 000xx Xxxxxx Xxxxxx XX 00000
MLMI-002 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
MLMI-006 000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
MLMI-009 0000 Xxxx Xxxx Xxx Xxxxx Xxxxxxxxx XX 00000
MLMI-013 000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
A-3
MORTGAGE LOAN SCHEDULE
CONTROL
NO. PROPERTY NAME PROPERTY TYPE ADDRESS CITY STATE ZIP CODE
---------- -------------------------------- ------------------ ------------------------------ -------------- ------- ---------
MLMI-014 Cedar Village Mobile Home Park Mobile Home Park County Xxxxxx 000 & 000 Xxxxxxx XX 00000
MLMI-015 Charleston Apartments Multifamily 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxx XX 00000
MLMI-016 Childs Instant Homes Mobile Home Park 000 Xxxx Xxxxxx Xxx Xxxxxxxxxx XX 00000
MLMI-017 City Villas Multifamily 000 00xx Xxxxxx Xxx Xxxxx XX 00000
MLMI-018 Clarendon Apartments Multifamily 0000 Xxxxx Xxxxx Xxxxxx XX 00000
MLMI-025 Eastgate Apartments Multifamily 000 Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-026 Federal Express Building Industrial 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
MLMI-027 Foxmoor Apartments Multifamily 00000 X. Xxxxxxx Xxxxx. Xxxxxx XX 00000
MLMI-029 Hartford Apartments Multifamily 0000 Xxxxxxxx Xxxxx Xxxxxx XX 00000
MLMI-036 Pep Boys Plaza Retail 000-000 X. Xxxx Xxxxx Xxxxxx XX 00000
MLMI-037 Peppertree Apartments Multifamily 0000 Xxxxxx Xxxxxx Xxxx Xx Xxxxx XX 00000
XXXX-000 Xxxx Xxxxx Retail 0000 Xxxx Xxxx Xxxxxxx XX 00000
MLMI-040 Quarters Apartments Multifamily 0000 Xxxxxx Xxxx Xxxxxx XX 00000
MLMI-043 Republic Beverage Building Industrial 0000 Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
MLMI-044 Royal Knight Apartments Multifamily 0000 Xxxxxx Xxxxxx Xxxxxx XX 00000
MLMI-046 Super 8 Rockwall Hospitality 0000 X 0-00 Xxxxxxxx XX 00000
MLMI-054 Village Square Apartments Multifamily 0000 Xxxxxxxxxxxx Xxxxx Xxxxxx XX 00000
MLMI-059 Xxxx Family Trust Apartments Multifamily 1102-1106 X. Xx. Xxxxxxx Xxx Xxxxxx XX 00000
MLMI-061 000 Xxxx 00xx Xxxxxx Multifamily 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
MLMI-065 Springfield Apartments Multifamily 0000 X. Xxxxxxx Xxxxxx Xxxxxx XX 00000
MLMI-066 Orleans East Apartments Multifamily 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000
MLMI-068 Redwood Village Apartments Multifamily 000-000 Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
A-4
MORTGAGE LOAN SCHEDULE
CUT-OFF DATE P&I PAYMENT
CONTROL NO. PROPERTY NAME BALANCE (MONTHLY)
------------- --------------------------------- ------------------ -------------
MLMI-001 1 Beach 10,480,964.30 66,367.14
MLMI-003 0000 Xxxxxxxx 59,845,380.00 395,528.60
MLMI-004 2 Northpoint 10,480,964.30 66,367.14
MLMI-005 3737 Hillcroft Apartments 7,574,169.54 54,331.05
MLMI-007 0000 Xxxxxxxxx Xxxx 4,982,001.30 36,380.78
MLMI-010 Xxxxxxx Furniture 2,391,059.53 17,118.19
MLMI-011 Bentworth Apartments 17,878,406.55 128,070.05
MLMI-012 Xxxxxxx-Brighton Shops 5,311,133.67 34,890.94
MLMI-019 Corr-Pro (Mystic) Warehouse 6,455,558.23 44,817.70
MLMI-021 Crown Gardens Apartments 1,860,739.63 14,276.03
MLMI-022 Xxxxx Xxxx Apartments 4,830,724.36 32,340.20
MLMI-023 Deerfield Apartments 5,980,327.35 39,799.80
XXXX-000 Xxxx 00xx Xxxxxx Brownstone 1,680,709.04 12,473.26
MLMI-028 Gazebo Inn 1,789,201.13 13,922.12
MLMI-030 Heritage Apartments 830,420.89 6,506.56
MLMI-031 Xxxxxxx Xxxxx Shopping Center 8,157,431.60 59,458.64
MLMI-032 Xxxxxxxx Plaza Apartments 5,063,420.71 34,357.41
MLMI-033 MeadowCrest Apartments 3,472,280.72 24,460.06
MLMI-035 X'Xxxxx Industrial Center 2,895,584.91 19,891.81
MLMI-038 Xxxxxx-Good Samaritan Center 1,428,497.67 10,336.25
MLMI-041 Ramada Inn Airport 10,735,274.85 74,074.11
MLMI-042 Xxxxx - Wildcreek Apartments 4,860,271.99 34,440.63
MLMI-045 Sommerset Apartments 6,369,214.37 43,065.71
MLMI-048 The Ansonia Commercial 28,781,905.22 190,817.69
MLMI-050 The Xxxxxxx 13,509,336.59 90,031.84
MLMI-051 The Wic Building 15,514,008.20 113,460.13
MLMI-052 Xxxxxxx Apartments 2,535,860.92 17,143.40
MLMI-053 Village at Brookside Apartments 1,485,634.68 10,857.04
MLMI-056 Willowbrook Apartments 2,889,196.94 20,684.48
MLMI-060 Woodhollow Apartments 2,512,045.07 17,385.23
MLMI-062 Cerritos Village 5,617,946.38 41,038.00
MLMI-064 Xxxxxx Mall 23,979,568.42 165,431.58
MLMI-067 Xxxxxx Village Shopping Center 3,621,867.09 24,762.08
MLMI-069 Argonne Avenue Apts 269,387.86 1,992.25
MLMI-070 Sundown Apartments 806,453.24 6,111.12
MLMI-071 Woodsdale Apartments 821,461.94 6,293.11
MLMI-072 00000 Xxxxxx Xxxxxx 477,427.74 3,563.99
MLMI-073 00000 Xxxxxxxxx 1,471,867.72 10,859.72
MLMI-074 0000 Xxxxx Xxxx Xxxxxx 702,479.74 5,050.71
REMAINING REMAINING MATURITY DATE GROUND BALLOON/HYPERAM/
CONTROL NO. GROSS RATE TERM (MOS) AMORT (MOS) ARD DATE LEASE FULLY AMORT
------------- ------------ ------------ ------------- --------------- -------- -----------------
MLMI-001 6.500 130 358 10/01/2009 No Balloon
MLMI-003 6.810 177 357 09/01/2013 Yes Hyperam
MLMI-004 6.500 130 358 10/01/2009 Yes Balloon
MLMI-005 7.544 70 346 10/01/2004 No Balloon
MLMI-007 7.220 117 297 09/01/2008 No Balloon
MLMI-010 7.000 117 297 09/01/2008 No Hyperam
MLMI-011 7.538 107 347 11/01/2007 No Balloon
MLMI-012 6.760 142 358 10/01/2010 No Balloon
MLMI-019 7.250 111 351 03/01/2008 No Hyperam
MLMI-021 7.647 107 287 11/01/2007 No Balloon
MLMI-022 6.920 115 355 07/01/2008 No Balloon
MLMI-023 6.870 116 356 08/01/2008 No Balloon
MLMI-024 8.000 104 344 08/01/2007 No Balloon
MLMI-028 7.375 116 260 08/01/2008 No Balloon
MLMI-030 8.580 102 342 06/01/2007 No Balloon
MLMI-031 7.320 238 298 10/01/2018 No Balloon
MLMI-032 7.020 111 351 03/01/2008 No Balloon
MLMI-033 7.390 170 350 02/01/2013 No Balloon
MLMI-035 7.200 118 358 10/01/2008 No Balloon
MLMI-038 7.770 109 349 01/01/2008 No Balloon
MLMI-041 6.625 119 299 11/01/2008 No Balloon
MLMI-042 7.125 112 316 04/01/2008 No Balloon
MLMI-045 7.010 174 354 06/01/2013 No Balloon
MLMI-048 6.790 75 351 03/01/2005 No Hyperam
MLMI-050 6.850 112 352 04/01/2008 No Balloon
MLMI-051 7.250 118 298 10/01/2008 No Balloon
MLMI-052 7.000 113 353 05/01/2008 No Balloon
MLMI-053 7.160 76 292 04/01/2005 No Balloon
MLMI-056 7.000 297 297 09/01/2023 No Fully Amort
MLMI-060 7.210 110 350 02/01/2008 No Balloon
MLMI-062 7.250 119 299 11/01/2008 No Balloon
MLMI-064 7.250 119 359 11/01/2008 Yes Balloon
MLMI-067 7.160 119 359 11/01/2008 No Balloon
MLMI-069 7.375 118 298 10/01/2008 No Balloon
MLMI-070 7.625 176 296 08/01/2013 No Balloon
MLMI-071 7.750 116 296 08/01/2008 No Balloon
MLMI-072 8.125 112 352 04/01/2008 No Balloon
MLMI-073 8.000 52 352 04/01/2003 No Balloon
MLMI-074 7.750 115 355 07/01/2008 No Balloon
A-5
MORTGAGE LOAN SCHEDULE
CUT-OFF DATE P&I PAYMENT
CONTROL NO. PROPERTY NAME BALANCE (MONTHLY)
------------- ----------------------------------- ---------------- -------------
MLMI-075 0000 Xxxxxx Xxxx 238,421.39 1,803.04
MLMI-076 Ashikita 573,045.02 4,219.15
MLMI-077 Balboa Plaza 622,567.27 4,695.42
MLMI-078 BHB Properties LLC 732,139.11 5,521.81
MLMI-079 Cherry Hills Apartments 593,125.00 4,522.43
MLMI-080 Xxxxxxxx Family Trust 775,193.60 6,149.91
MLMI-081 Gabela Partners 1,255,095.62 9,465.96
MLMI-082 Xxxxxx 772,430.68 5,754.35
MLMI-083 Xxxxx Xxxx Trustee 894,454.14 7,096.05
MLMI-084 Parkside Plaza, LLC 560,569.49 4,709.44
MLMI-085 Patio World 695,765.53 5,197.48
MLMI-086 Rainbow Center 1,474,920.68 12,898.92
MLMI-087 Xxxx X. Xxxx Family Trust 736,289.13 5,896.48
MLMI-088 Xxxxxx 535,602.43 4,589.94
MLMI-089 Spring Valley Plaza 906,991.66 6,766.01
MLMI-090 Xxxxxx Xxxxxxx 376,808.77 2,873.07
MLMI-100 Hastings Entertainment 1,348,157.32 9,323.93
MLMI-101 0000 Xxxxxx Xxxxxxxxx 4,659,887.00 36,276.46
MLMI-102 Embassy Suites - Oklahoma City 17,214,166.00 127,475.98
MLMI-104 BJ's Wholesale Club 7,189,570.00 47,901.78
MLMI-105 Country Club Care Center 3,854,142.75 30,744.57
MLMI-106 Crown Care Center 4,102,797.50 32,728.09
MLMI-107 1401 Xxxxxxxx St. - Coca Cola 2,295,108.00 16,810.23
MLMI-108 Beacon Square 1,915,086.75 13,760.75
MLMI-109 Quadrangle Square 4,848,613.50 31,926.74
XXXX-000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 9,186,673.00 61,207.83
MLMI-111 Shenandoah Square Shopping Center 2,264,133.25 16,217.81
MLMI-112 Xxxx and Xxxxxxx Center 423,509.72 4,668.90
MLMI-114 Oak Lawn Promenade 2,786,199.25 19,032.72
MLMI-115 Santa Xxxxxx Sav-On 4,831,808.50 35,348.51
MLMI-116 Seneca Park Plaza Shopping Center 2,341,734.25 16,639.31
MLMI-117 Willowbrook Court Shopping Center 7,988,270.00 52,955.83
MLMI-118 Waterbury Crossing 6,277,956.00 44,728.24
MLMI-119 The LeConte Building 1,469,972.88 10,613.93
MLMI-120 Office Max 3,010,956.25 20,695.58
MLMI-124 Fairfield Inn - Beaverton 4,894,634.50 37,011.11
MLMI-125 Courtyard by Marriott - Newburgh 4,619,728.00 34,178.34
MLMI-126 Albany Thruway Courtyard 4,519,842.00 33,439.35
XXXX-000 Xxxxxxxxx Xxx - Xxxxxxxxx 2,846,751.25 21,061.25
REMAINING REMAINING MATURITY DATE GROUND BALLOON/HYPERAM/
CONTROL NO. GROSS RATE TERM (MOS) AMORT (MOS) ARD DATE LEASE FULLY AMORT
------------- ------------ ------------ ------------- --------------- -------- -----------------
MLMI-075 8.250 110 350 02/01/2008 No Balloon
MLMI-076 8.000 115 355 07/01/2008 No Balloon
MLMI-077 8.250 114 354 06/01/2008 No Balloon
MLMI-078 8.250 114 354 06/01/2008 No Balloon
MLMI-079 8.375 115 355 07/01/2008 No Balloon
MLMI-080 8.250 114 294 06/01/2008 No Balloon
MLMI-081 8.250 114 354 06/01/2008 No Balloon
MLMI-082 8.125 115 355 07/01/2008 No Balloon
MLMI-083 8.250 114 294 06/01/2008 No Balloon
MLMI-084 7.875 117 237 09/01/2008 No Balloon
MLMI-085 8.125 111 351 03/01/2008 No Balloon
MLMI-086 8.375 110 230 02/01/2008 No Balloon
MLMI-087 8.375 115 295 07/01/2008 No Balloon
MLMI-088 9.625 104 344 08/01/2007 No Balloon
MLMI-089 8.125 53 353 05/01/2003 No Balloon
MLMI-090 8.375 115 355 07/01/2008 No Balloon
MLMI-100 6.650 119 299 11/01/2008 No Balloon
MLMI-101 7.510 177 261 09/01/2013 No Balloon
MLMI-102 7.500 118 298 10/01/2008 No Balloon
MLMI-104 7.000 178 358 10/01/2013 No Balloon
MLMI-105 7.300 237 237 09/01/2018 No Fully Amort
MLMI-106 7.300 237 237 09/01/2018 No Fully Amort
MLMI-107 7.375 118 298 10/01/2008 No Balloon
MLMI-108 7.500 117 327 09/01/2008 No Balloon
MLMI-109 6.875 117 357 09/01/2008 No Balloon
MLMI-110 7.000 118 358 10/01/2008 No Balloon
MLMI-111 7.110 117 297 09/01/2008 No Balloon
MLMI-112 6.950 129 129 09/01/2009 No Fully Amort
MLMI-114 7.250 118 358 10/01/2008 No Balloon
MLMI-115 7.175 285 285 09/01/2022 No Fully Amort
MLMI-116 7.020 117 297 09/01/2008 No Balloon
MLMI-117 6.950 118 358 10/01/2008 No Balloon
MLMI-118 7.050 117 297 09/01/2008 No Balloon
MLMI-119 7.200 117 297 09/01/2008 No Balloon
MLMI-120 7.313 176 358 08/01/2013 No Balloon
MLMI-124 7.750 119 299 11/01/2008 No Balloon
MLMI-125 7.500 119 299 11/01/2008 Yes Balloon
MLMI-126 7.500 119 299 11/01/2008 Yes Balloon
MLMI-127 7.500 119 299 11/01/2008 Yes Balloon
A-6
MORTGAGE LOAN SCHEDULE
CUT-OFF DATE P&I PAYMENT
CONTROL NO. PROPERTY NAME BALANCE (MONTHLY)
------------- ---------------------------------------------- ------------------ -------------
MLMI-128 Quality Inn City Center 13,683,354.00 97,704.46
MLMI-133 Sammamish Ridge 5,000,000.00 28,708.33
MLMI-134 Kenmore Estates 6,765,511.00 45,149.27
MLMI-135 Independence Green Apartments 34,890,416.00 225,847.29
MLMI-139 Walkers Ridge 1,988,790.63 15,493.98
MLMI-140 Colonial House 2,092,587.75 14,842.36
MLMI-141 Chapelcroft 2,221,969.00 15,178.42
MLMI-142 Aspen Shadows 3,991,292.75 27,151.53
MLMI-143 Antelope Manor Apartments 1,825,736.38 12,052.38
MLMI-144 AAAABCO Xxxxxx Mini Storage 3,587,622.00 25,789.57
MLMI-146 49er Mini Storage 1,568,913.25 11,631.72
MLMI-152 Chateau Brickyard 6,295,085.50 42,977.11
MLMI-153 Holiday on the Bay 12,000,000.00 78,631.11
MLMI-160 PetsMart, Inc. 3,737,476.25 29,055.89
MLMI-162 Rite Aid 1,738,277.63 12,225.38
MLMI-161 Xxxxxx Xxxxxx 3,204,461.50 23,054.91
MLMI-163 Xxxxxx Xxxxxx 1,409,963.13 10,144.16
MLMI-164 Kings Court Shopping Center 3,090,855.57 20,520.39
MLMI-091 11307 Xxxxxxxx 1,116,673.03 8,052.47
MLMI-092 00000 Xxxxxxxx Xxxxxx 2,042,949.14 13,364.47
MLMI-093 0000 Xxxx Xxxxxx 1,196,502.71 7,983.63
MLMI-094 0000 Xxxxxxxx Xxxxxx 1,057,001.41 7,993.48
MLMI-095 0000 Xxxx Xxxxxx 1,196,502.71 7,983.63
MLMI-096 Pine Valley Court (Colony Xxxxxx) Apartments 2,581,589.98 19,761.88
MLMI-097 Doheny Drive Apartments 2,086,310.72 15,044.66
MLMI-098 Hacienda xx Xxxxxxxxx 2,040,495.73 14,158.84
MLMI-099 Peachtree & Willow Lake Apartments 1,640,704.15 11,963.64
MLMI-008 Alexander House Apartments 2,776,993.52 19,540.37
MLMI-020 Crosspointe Vista Apartments 3,567,479.57 24,515.13
MLMI-034 Myrtle Cove Apartments 9,452,863.65 61,620.03
MLMI-047 Xxxx Xxxx Apartments 2,252,315.35 15,751.09
MLMI-049 The Atrium Cellini Apartments 2,702,444.67 18,303.34
MLMI-055 Westcliff Apartments 1,431,187.06 10,151.77
MLMI-057 Wilshire Village Shopping Center 2,589,399.25 18,584.42
MLMI-058 Windsor Court Apartments 2,497,769.30 16,751.53
MLMI-002 000 Xxxx 00xx Xxxxxx 2,192,712.38 16,779.60
MLMI-006 502 West Office Center 4,839,003.98 35,786.77
MLMI-009 Arlington Park I 1,990,111.74 13,273.71
MLMI-013 Bishops Landing Apartments 3,682,407.16 26,694.78
REMAINING REMAINING MATURITY DATE GROUND BALLOON/HYPERAM/
CONTROL NO. GROSS RATE TERM (MOS) AMORT (MOS) ARD DATE LEASE FULLY AMORT
------------- ------------ ------------ ------------- --------------- -------- -----------------
MLMI-128 7.100 119 299 11/01/2008 No Balloon
MLMI-133 6.890 116 IO 08/01/2008 No Balloon
MLMI-134 6.980 77 353 05/01/2005 No Balloon
MLMI-135 6.700 116 356 08/01/2008 No Balloon
MLMI-139 6.990 237 237 09/01/2018 No Fully Amort
MLMI-140 7.000 177 297 09/01/2013 No Balloon
MLMI-141 7.250 178 358 10/01/2013 No Balloon
MLMI-142 7.200 117 357 09/01/2008 No Balloon
MLMI-143 6.900 117 357 09/01/2008 No Balloon
MLMI-144 7.150 117 297 09/01/2008 No Balloon
MLMI-146 7.500 117 297 09/01/2008 No Balloon
MLMI-152 7.250 119 359 11/01/2008 No Balloon
MLMI-153 6.850 180 360 12/01/2013 No Hyperam
MLMI-160 8.580 114 354 06/01/2008 No Balloon
MLMI-162 6.875 237 295 09/01/2018 No Balloon
MLMI-161 7.420 152 318 08/01/2011 No Balloon
MLMI-163 7.420 152 318 08/01/2011 No Balloon
MLMI-164 6.950 116 356 08/01/2008 No Balloon
MLMI-091 7.750 111 351 03/01/2008 No Balloon
MLMI-092 6.800 116 356 08/01/2008 No Balloon
MLMI-093 7.000 116 356 08/01/2008 No Balloon
MLMI-094 8.250 110 350 02/01/2008 No Balloon
MLMI-095 7.000 116 356 08/01/2008 No Balloon
MLMI-096 8.375 109 349 01/01/2008 No Balloon
MLMI-097 7.750 111 351 03/01/2008 No Balloon
MLMI-098 7.375 114 354 06/01/2008 No Balloon
MLMI-099 7.875 112 352 04/01/2008 No Balloon
MLMI-008 7.050 112 316 04/01/2008 No Balloon
MLMI-020 7.130 73 349 01/01/2005 No Balloon
MLMI-034 6.730 112 352 04/01/2008 No Balloon
MLMI-047 7.340 113 353 05/01/2008 No Balloon
MLMI-049 7.010 112 352 04/01/2008 No Balloon
MLMI-055 6.870 115 295 07/01/2008 No Balloon
MLMI-057 7.000 115 295 07/01/2008 No Balloon
MLMI-058 6.970 119 359 11/01/2008 No Balloon
MLMI-002 7.750 117 297 09/01/2008 No Balloon
MLMI-006 7.375 142 298 10/01/2010 No Balloon
MLMI-009 6.875 114 354 06/01/2008 No Balloon
MLMI-013 7.125 176 296 08/01/2013 No Balloon
A-7
MORTGAGE LOAN SCHEDULE
CUT-OFF DATE P&I PAYMENT
CONTROL NO. PROPERTY NAME BALANCE (MONTHLY)
------------- -------------------------------- ----------------- -------------
MLMI-014 Cedar Village Mobile Home Park 1,165,188.06 9,121.32
MLMI-015 Charleston Apartments 2,041,446.91 14,799.01
MLMI-016 Childs Instant Homes 1,992,560.40 15,782.29
MLMI-017 City Villas 2,495,307.01 15,409.43
MLMI-018 Clarendon Apartments 2,929,752.96 21,238.59
MLMI-025 Eastgate Apartments 1,648,535.15 11,089.85
MLMI-026 Federal Express Building 7,948,039.63 71,358.12
MLMI-027 Foxmoor Apartments 5,607,995.75 44,777.19
MLMI-029 Hartford Apartments 2,484,317.51 17,063.20
MLMI-036 Pep Boys Plaza 2,391,400.98 17,510.00
MLMI-037 Peppertree Apartments 1,226,935.15 8,614.59
XXXX-000 Xxxx Xxxxx 1,420,966.00 12,833.74
MLMI-040 Quarters Apartments 3,329,450.94 23,807.00
MLMI-043 Republic Beverage Building 10,658,301.05 79,815.95
MLMI-044 Royal Knight Apartments 1,348,603.67 9,425.51
MLMI-046 Super 8 Rockwall 1,193,655.84 9,926.98
MLMI-054 Village Square Apartments 1,689,182.79 11,521.17
MLMI-059 Xxxx Family Trust Apartments 1,992,972.85 14,756.12
MLMI-061 000 Xxxx 00xx Xxxxxx 2,347,999.41 16,198.51
MLMI-065 Springfield Apartments 2,997,102.15 19,147.85
MLMI-066 Orleans East Apartments 2,297,914.66 15,262.42
MLMI-068 Redwood Village Apartments 6,191,945.76 44,220.91
REMAINING REMAINING MATURITY DATE GROUND BALLOON/HYPERAM/
CONTROL NO. GROSS RATE TERM (MOS) AMORT (MOS) ARD DATE LEASE FULLY AMORT
------------- ------------ ------------ ------------- --------------- -------- -----------------
MLMI-014 8.000 80 296 08/01/2005 No Balloon
MLMI-015 7.125 176 296 08/01/2013 No Balloon
MLMI-016 7.125 238 238 10/01/2018 No Fully Amort
MLMI-017 6.170 118 358 10/01/2008 No Balloon
MLMI-018 7.125 176 296 08/01/2013 No Balloon
MLMI-025 7.000 239 359 11/01/2018 No Balloon
MLMI-026 6.780 178 178 10/01/2013 No Fully Amort
MLMI-027 7.180 236 236 08/01/2018 No Fully Amort
MLMI-029 7.150 112 352 04/01/2008 No Balloon
MLMI-036 7.250 81 297 09/01/2005 Yes Balloon
MLMI-037 6.800 118 298 10/01/2008 No Balloon
MLMI-039 6.875 178 178 10/01/2013 No Fully Amort
MLMI-040 7.000 118 298 10/01/2008 No Balloon
MLMI-043 6.530 239 239 11/01/2018 No Fully Amort
MLMI-044 6.750 118 298 10/01/2008 No Balloon
MLMI-046 7.740 237 237 09/01/2018 No Fully Amort
MLMI-054 7.080 112 352 04/01/2008 No Balloon
MLMI-059 7.375 177 297 09/01/2013 No Balloon
MLMI-061 7.250 119 359 11/01/2008 No Balloon
MLMI-065 6.500 179 359 11/01/2013 No Balloon
MLMI-066 6.875 119 359 11/01/2008 No Balloon
MLMI-068 7.000 119 299 11/01/2008 No Balloon
A-8
MORTGAGE LOAN SCHEDULE
SUB MASTER
CONTROL NO. PROPERTY NAME SERVICING FEES SERVICING FEES
------------- --------------------------------- ---------------- ----------------
MLMI-001 1 Beach 0.0700 0.0350
MLMI-003 0000 Xxxxxxxx 0.0700 0.0350
MLMI-004 2 Northpoint 0.0700 0.0350
MLMI-005 3737 Hillcroft Apartments 0.0700 0.0350
MLMI-007 0000 Xxxxxxxxx Xxxx 0.0700 0.0350
MLMI-010 Xxxxxxx Furniture 0.0700 0.0350
XXXX-000 Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxx-Xxxxxxxx Shops 0.0700 0.0350
MLMI-019 Corr-Pro (Mystic) Warehouse 0.0700 0.0350
XXXX-000 Xxxxx Xxxxxxx Xxxxxxxxxx 0.0000 0.0350
XXXX-000 Xxxxx Xxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxx Apartments 0.0700 0.0350
XXXX-000 Xxxx 00xx Xxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Gazebo Inn 0.0700 0.0350
MLMI-030 Heritage Apartments 0.0700 0.0350
MLMI-031 Xxxxxxx Xxxxx Shopping Center 0.0700 0.0350
MLMI-032 Xxxxxxxx Plaza Apartments 0.0700 0.0350
XXXX-000 XxxxxxXxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 X'Xxxxx Industrial Center 0.0700 0.0350
MLMI-038 Xxxxxx-Good Samaritan Center 0.0700 0.0350
MLMI-041 Ramada Inn Airport 0.0700 0.0350
MLMI-042 Xxxxx - Wildcreek Apartments 0.0700 0.0350
XXXX-000 Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxx Ansonia Commercial 0.0700 0.0350
MLMI-050 The Xxxxxxx 0.0700 0.0350
MLMI-051 The Wic Building 0.0700 0.0350
MLMI-052 Xxxxxxx Apartments 0.0700 0.0350
XXXX-000 Xxxxxxx xx Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0350
MLMI-056 Willowbrook Apartments 0.0700 0.0350
XXXX-000 Xxxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Village 0.0700 0.0350
MLMI-064 Xxxxxx Mall 0.0700 0.0350
MLMI-067 Xxxxxx Village Shopping Center 0.0700 0.0350
XXXX-000 Xxxxxxx Xxxxxx Xxxx 0.0000 0.0000
XXXX-000 Xxxxxxx Apartments 0.0700 0.0350
XXXX-000 Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 00000 Xxxxxx Xxxxxx 0.0700 0.0350
MLMI-073 00000 Xxxxxxxxx 0.0700 0.0350
MLMI-074 0000 Xxxxx Xxxx Xxxxxx 0.0700 0.0350
MORTGAGE INTEREST
CONTROL NO. LOAN SELLER SUBSERVICER DEFEASANCE ACCRUAL CROSS DEFAULTED
------------- ------------- -------------------------- ------------ ----------- ----------------
MLMI-001 MLMI GE Capital Loan Services Y 30/360
MLMI-003 MLMI GE Capital Loan Services Y Actual/360
MLMI-004 MLMI GE Capital Loan Services Y 30/360
MLMI-005 MLMI GE Capital Loan Services Actual/360
MLMI-007 MLMI GE Capital Loan Services Y Actual/360
MLMI-010 MLMI GE Capital Loan Services Actual/360
MLMI-011 MLMI GE Capital Loan Services Actual/360
MLMI-012 MLMI GE Capital Loan Services Actual/360
MLMI-019 MLMI GE Capital Loan Services Actual/360
MLMI-021 MLMI GE Capital Loan Services Actual/360
MLMI-022 MLMI GE Capital Loan Services Actual/360
MLMI-023 MLMI GE Capital Loan Services Y Actual/360
MLMI-024 MLMI GE Capital Loan Services 30/360
MLMI-028 MLMI GE Capital Loan Services Y Actual/360
MLMI-030 MLMI GE Capital Loan Services Y 30/360
MLMI-031 MLMI GE Capital Loan Services Y Actual/360
MLMI-032 MLMI GE Capital Loan Services Actual/360
MLMI-033 MLMI GE Capital Loan Services Actual/360
MLMI-035 MLMI GE Capital Loan Services Y Actual/360
MLMI-038 MLMI GE Capital Loan Services 30/360
MLMI-041 MLMI GE Capital Loan Services Y Actual/360
MLMI-042 MLMI GE Capital Loan Services Actual/360
MLMI-045 MLMI GE Capital Loan Services Actual/360
MLMI-048 MLMI GE Capital Loan Services Actual/360
MLMI-050 MLMI GE Capital Loan Services Actual/360
MLMI-051 MLMI GE Capital Loan Services Y Actual/360
MLMI-052 MLMI GE Capital Loan Services Actual/360
MLMI-053 MLMI GE Capital Loan Services Actual/360
MLMI-056 MLMI GE Capital Loan Services Y Actual/360
MLMI-060 MLMI GE Capital Loan Services Actual/360
MLMI-062 MLMI GE Capital Loan Services Y Actual/360
MLMI-064 MLMI GE Capital Loan Services Y Actual/360
MLMI-067 MLMI GE Capital Loan Services Y Actual/360
MLMI-069 MLMI GE Capital Loan Services Y Actual/360
MLMI-070 MLMI GE Capital Loan Services Y Actual/360
MLMI-071 MLMI GE Capital Loan Services Y Actual/360
MLMI-072 MLMI GE Capital Loan Services 30/360
MLMI-073 MLMI GE Capital Loan Services 30/360
MLMI-074 MLMI GE Capital Loan Services 30/360
A-9
MORTGAGE LOAN SCHEDULE
SUB MASTER
CONTROL NO. PROPERTY NAME SERVICING FEES SERVICING FEES
------------- ----------------------------------- ---------------- ----------------
MLMI-075 0000 Xxxxxx Xxxx 0.0700 0.0350
MLMI-076 Ashikita 0.0700 0.0350
XXXX-000 Xxxxxx Xxxxx 0.0000 0.0000
XXXX-000 XXX Properties LLC 0.0700 0.0350
XXXX-000 Xxxxxx Xxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Family Trust 0.0700 0.0350
MLMI-081 Gabela Partners 0.0700 0.0350
XXXX-000 Xxxxxx 0.0000 0.0000
XXXX-000 Xxxxx Xxxx Trustee 0.0700 0.0350
XXXX-000 Xxxxxxxx Xxxxx, XXX 0.0000 0.0000
XXXX-000 Patio World 0.0700 0.0350
MLMI-086 Rainbow Center 0.0700 0.0350
MLMI-087 Xxxx X. Xxxx Family Trust 0.0700 0.0350
MLMI-088 Xxxxxx 0.0700 0.0350
XXXX-000 Xxxxxx Xxxxxx Xxxxx 0.0000 0.0000
XXXX-000 Xxxxxx Xxxxxxx 0.0700 0.0350
MLMI-100 Hastings Entertainment 0.0700 0.0350
MLMI-101 0000 Xxxxxx Xxxxxxxxx 0.0700 0.0350
XXXX-000 Xxxxxxx Xxxxxx - Xxxxxxxx Xxxx 0.0000 0.0000
XXXX-000 BJ's Wholesale Club 0.0700 0.0350
MLMI-105 Country Club Care Center 0.0700 0.0350
MLMI-106 Crown Care Center 0.0700 0.0350
MLMI-107 1401 Xxxxxxxx St. - Coca Cola 0.0700 0.0350
XXXX-000 Xxxxxx Xxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxxx Square 0.0700 0.0350
XXXX-000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0.0700 0.0350
MLMI-111 Shenandoah Square Shopping Center 0.0700 0.0350
MLMI-112 Xxxx and Xxxxxxx Center 0.0700 0.0350
MLMI-114 Oak Lawn Promenade 0.0700 0.0350
MLMI-115 Santa Xxxxxx Sav-On 0.0700 0.0350
MLMI-116 Seneca Park Plaza Shopping Center 0.0700 0.0350
XXXX-000 Xxxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxx Crossing 0.0700 0.0350
XXXX-000 Xxx XxXxxxx Xxxxxxxx 0.0000 0.0000
XXXX-000 Office Max 0.0700 0.0350
XXXX-000 Xxxxxxxxx Xxx - Xxxxxxxxx 0.0000 0.0350
MLMI-125 Courtyard by Xxxxxxxx - Xxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxx Thruway Courtyard 0.0700 0.0350
XXXX-000 Xxxxxxxxx Xxx - Xxxxxxxxx 0.0000 0.0350
MORTGAGE INTEREST
CONTROL NO. LOAN SELLER SUBSERVICER DEFEASANCE ACCRUAL CROSS DEFAULTED
------------- ------------- -------------------------- ------------ ------------ -------------------
MLMI-075 MLMI GE Capital Loan Services 30/360
MLMI-076 MLMI GE Capital Loan Services 30/360
MLMI-077 MLMI GE Capital Loan Services 30/360
MLMI-078 MLMI GE Capital Loan Services 30/360
MLMI-079 MLMI GE Capital Loan Services 30/360
MLMI-080 MLMI GE Capital Loan Services 30/360
MLMI-081 MLMI GE Capital Loan Services 30/360
MLMI-082 MLMI GE Capital Loan Services 30/360
MLMI-083 MLMI GE Capital Loan Services 30/360
MLMI-084 MLMI GE Capital Loan Services Y Actual/360
MLMI-085 MLMI GE Capital Loan Services 30/360
MLMI-086 MLMI GE Capital Loan Services 30/360
MLMI-087 MLMI GE Capital Loan Services 30/360
MLMI-088 MLMI GE Capital Loan Services 30/360
MLMI-089 MLMI GE Capital Loan Services 30/360
MLMI-090 MLMI GE Capital Loan Services 30/360
MLMI-100 MLMI GE Capital Loan Services Y Actual/360
MLMI-101 MLMI GE Capital Loan Services Y Actual/360
MLMI-102 MLMI GE Capital Loan Services Y Actual/360
MLMI-104 MLMI GE Capital Loan Services Y Actual/360
MLMI-105 MLMI GE Capital Loan Services Y Actual/360 MLMI-106
MLMI-106 MLMI GE Capital Loan Services Y Actual/360 MLMI-105
MLMI-107 MLMI GE Capital Loan Services Y Actual/360
MLMI-108 MLMI GE Capital Loan Services Y Actual/360
MLMI-109 MLMI GE Capital Loan Services Y Actual/360
MLMI-110 MLMI GE Capital Loan Services Y Actual/360
MLMI-111 MLMI GE Capital Loan Services Y Actual/360
MLMI-112 MLMI GE Capital Loan Services Y Actual/360
MLMI-114 MLMI GE Capital Loan Services Y Actual/360
MLMI-115 MLMI GE Capital Loan Services Y Actual/360
MLMI-116 MLMI GE Capital Loan Services Y Actual/360
MLMI-117 MLMI GE Capital Loan Services Y Actual/360
MLMI-118 MLMI GE Capital Loan Services Y Actual/360
MLMI-119 MLMI GE Capital Loan Services Y Actual/360
MLMI-120 MLMI GE Capital Loan Services Y Actual/360
MLMI-124 MLMI GE Capital Loan Services Y Actual/360
MLMI-125 MLMI GE Capital Loan Services Y Actual/360 MLMI-127; MLMI-126
MLMI-126 MLMI GE Capital Loan Services Y Actual/360 MLMI-127; MLMI-125
MLMI-127 MLMI GE Capital Loan Services Y Actual/360 MLMI-125; MLMI-126
A-10
MORTGAGE LOAN SCHEDULE
SUB MASTER
CONTROL NO. PROPERTY NAME SERVICING FEES SERVICING FEES
------------- ---------------------------------------------- ---------------- ----------------
MLMI-128 Quality Inn City Center 0.0700 0.0350
MLMI-133 Sammamish Ridge 0.0700 0.0350
XXXX-000 Xxxxxxx Xxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxxxxx Green Apartments 0.0700 0.0350
XXXX-000 Xxxxxxx Xxxxx 0.0000 0.0350
XXXX-000 Xxxxxxxx Xxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxxxx 0.0700 0.0350
MLMI-142 Aspen Shadows 0.0700 0.0350
MLMI-143 Antelope Manor Apartments 0.0700 0.0350
MLMI-144 AAAABCO Xxxxxx Mini Storage 0.0700 0.0350
MLMI-146 49er Mini Storage 0.0700 0.0350
MLMI-152 Chateau Brickyard 0.0700 0.0350
MLMI-153 Holiday on the Bay 0.0700 0.0350
MLMI-160 PetsMart, Inc. 0.0700 0.0350
MLMI-162 Rite Aid 0.0700 0.0350
XXXX-000 Xxxxxx Xxxxxx 0.0000 0.0000
XXXX-000 Xxxxxx Xxxxxx 0.0700 0.0350
XXXX-000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 0.0000 0.0000
XXXX-000 11307 Xxxxxxxx 0.0700 0.0350
MLMI-092 00000 Xxxxxxxx Xxxxxx 0.0700 0.0350
MLMI-093 0000 Xxxx Xxxxxx 0.0700 0.0350
MLMI-094 0000 Xxxxxxxx Xxxxxx 0.0700 0.0350
MLMI-095 0000 Xxxx Xxxxxx 0.0700 0.0350
XXXX-000 Xxxx Xxxxxx Xxxxx (Xxxxxx Xxxxxx) Xxxxxxxxxx 0.0000 0.0350
MLMI-097 Doheny Drive Apartments 0.0700 0.0350
XXXX-000 Xxxxxxxx xx Xxxxxxxxx 0.0000 0.0350
XXXX-000 Xxxxxxxxx & Xxxxxx Xxxx Xxxxxxxxxx 0.0000 0.0350
MLMI-008 Alexander House Apartments 0.0600 0.0350
XXXX-000 Xxxxxxxxxxx Xxxxx Xxxxxxxxxx 0.0000 0.0350
XXXX-000 Xxxxxx Xxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxx Xxxx Apartments 0.0600 0.0350
MLMI-049 The Atrium Cellini Apartments 0.0600 0.0350
XXXX-000 Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Village Shopping Center 0.0600 0.0350
XXXX-000 Xxxxxxx Xxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 000 Xxxx 00xx Xxxxxx 0.0900 0.0350
MLMI-006 000 Xxxx Xxxxxx Xxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxx Xxxx I 0.0900 0.0350
XXXX-000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXXXXXX INTEREST
CONTROL NO. LOAN SELLER SUBSERVICER DEFEASANCE ACCRUAL CROSS DEFAULTED
------------- ------------- -------------------------- ------------ ----------- ----------------
MLMI-128 MLMI GE Capital Loan Services Actual/360
MLMI-133 MLMI GE Capital Loan Services Y 30/360
MLMI-134 MLMI GE Capital Loan Services Actual/360
MLMI-135 MLMI GE Capital Loan Services Y Actual/360
MLMI-139 MLMI GE Capital Loan Services Y Actual/360
MLMI-140 MLMI GE Capital Loan Services Y Actual/360
MLMI-141 MLMI GE Capital Loan Services Y Actual/360
MLMI-142 MLMI GE Capital Loan Services Y Actual/360
MLMI-143 MLMI GE Capital Loan Services Y Actual/360
MLMI-144 MLMI GE Capital Loan Services Y Actual/360
MLMI-146 MLMI GE Capital Loan Services Y Actual/360
MLMI-152 MLMI GE Capital Loan Services Y Actual/360
MLMI-153 MLMI GE Capital Loan Services Y Actual/360
MLMI-160 MLMI GE Capital Loan Services Y 30/360
MLMI-162 MLMI GE Capital Loan Services Y 30/360
MLMI-161 MLMI GE Capital Loan Services Y 30/360
MLMI-163 MLMI GE Capital Loan Services Y 30/360
MLMI-164 MLMI GE Capital Loan Services Y Actual/360
MLMI-091 MLMI GE Capital Loan Services 30/360
MLMI-092 MLMI GE Capital Loan Services 30/360
MLMI-093 MLMI GE Capital Loan Services Actual/360
MLMI-094 MLMI GE Capital Loan Services 30/360
MLMI-095 MLMI GE Capital Loan Services Actual/360
MLMI-096 MLMI GE Capital Loan Services 30/360
MLMI-097 MLMI GE Capital Loan Services 30/360
MLMI-098 MLMI GE Capital Loan Services 30/360
MLMI-099 MLMI GE Capital Loan Services 30/360
MLMI-008 MLMI X.X. Xxxxxx & Co. Actual/360
MLMI-020 MLMI X.X. Melody & Co. Actual/360
MLMI-034 MLMI X.X. Xxxxxx & Co. Y 30/360
MLMI-047 MLMI X.X. Melody & Co. Actual/360
MLMI-049 MLMI X.X. Xxxxxx & Co. Actual/360
MLMI-055 MLMI X.X. Melody & Co. Actual/360
MLMI-057 MLMI X.X. Xxxxxx & Co. Actual/360
MLMI-058 MLMI X.X. Melody & Co. Y Actual/360
MLMI-002 MLMI MLCC Actual/360
MLMI-006 MLMI MLCC Y Actual/360
MLMI-009 MLMI MLCC Y Actual/360
MLMI-013 MLMI MLCC Actual/360
A-11
MORTGAGE LOAN SCHEDULE
SUB MASTER
CONTROL NO. PROPERTY NAME SERVICING FEES SERVICING FEES
------------- -------------------------------- ---------------- ----------------
MLMI-014 Cedar Village Mobile Home Park 0.0900 0.0350
XXXX-000 Xxxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxx Instant Homes 0.0900 0.0350
MLMI-017 City Villas 0.0900 0.0350
XXXX-000 Xxxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Apartments 0.0900 0.0350
MLMI-026 Federal Express Building 0.0900 0.0350
XXXX-000 Xxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Apartments 0.0900 0.0350
MLMI-036 Pep Xxxx Xxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxxxx Apartments 0.0900 0.0350
XXXX-000 Xxxx Xxxxx 0.0000 0.0350
XXXX-000 Xxxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxxxxxx Beverage Building 0.0900 0.0350
MLMI-044 Royal Knight Apartments 0.0900 0.0350
MLMI-046 Super 8 Rockwall 0.0900 0.0350
XXXX-000 Xxxxxxx Xxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXX-000 Xxxx Family Trust Apartments 0.0900 0.0350
MLMI-061 000 Xxxx 00xx Xxxxxx 0.0900 0.0350
MLMI-065 Springfield Apartments 0.0900 0.0350
MLMI-066 Orleans East Apartments 0.0900 0.0350
XXXX-000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.0000 0.0000
XXXXXXXX INTEREST
CONTROL NO. LOAN SELLER SUBSERVICER DEFEASANCE ACCRUAL CROSS DEFAULTED
------------- ------------- ------------- ------------ ----------- ----------------
MLMI-014 MLMI MLCC Actual/360
MLMI-015 MLMI MLCC Actual/360
MLMI-016 MLMI MLCC Actual/360
MLMI-017 MLMI MLCC Y Actual/360
MLMI-018 MLMI MLCC Actual/360
MLMI-025 MLMI MLCC Y Actual/360
MLMI-026 MLMI MLCC Y Actual/360
MLMI-027 MLMI MLCC Y Actual/360
MLMI-029 MLMI MLCC Y Actual/360
MLMI-036 MLMI MLCC Actual/360
MLMI-037 MLMI MLCC Actual/360
MLMI-039 MLMI MLCC Actual/360
MLMI-040 MLMI MLCC Y Actual/360
MLMI-043 MLMI MLCC Y 30/360
MLMI-044 MLMI MLCC Y Actual/360
MLMI-046 MLMI MLCC Y Actual/360
MLMI-054 MLMI MLCC Y Actual/360
MLMI-059 MLMI MLCC Actual/360
MLMI-061 MLMI MLCC Y Actual/360
MLMI-065 MLMI MLCC Actual/360
MLMI-066 MLMI MLCC Y Actual/360
MLMI-068 MLMI MLCC Y Actual/360
A-12
EXHIBIT B
FORM OF CERTIFICATE OF AN OFFICER OF
[SELLER]
I, ______________________, hereby certify that I am an
authorized signatory of [SELLER], a [STATE] corporation (the "Seller"), and
that, based upon information provided to me by appropriate officers and other
representatives of the Seller, certify further as follows, to the best of my
knowledge:
1. The representations and warranties of
the Seller in the Mortgage Loan Purchase Agreement, dated as
of [DATE], 1998, between the Seller and Commercial Mortgage
Acceptance Corp. (the "Company") (the "MLPA") 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 subject,
with respect to the representations and warranties made under
Section 2(b) of the MLPA, to the exceptions to such
representations and warranties set forth in the MLPA.
2. The Seller has, in all material aspects,
complied with all the agreements and satisfied all the
conditions on its part that are required under the MLPA to be
performed or satisfied at or prior to the date hereof.
This Certificate is made to the Company and to the Trustee
(for the benefit of the Certificateholders) as the transferee of the Company.
Capitalized terms used herein, but not otherwise defined, shall have the
meanings given such terms in the MLPA.
IN WITNESS WHEREOF, I have executed this Certificate as of
[DATE], 1998.
[SELLER]
By:
--------------------
Name:
Title:
I, [___], a [___] of the Seller, hereby certify that [___] is
an authorized signatory of the Seller and that the signature appearing above is
his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate as of
[DATE], 1998.
By:
--------------------
Name:
Title:
B-1
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a [STATE] corporation duly
organized, validly existing and in good standing under the laws of the State of
[STATE], with full corporate power and authority to own the Mortgage Loans, and
enter into and perform its obligations under the Mortgage Loan Purchase
Agreement.
2. The Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Mortgage Loan Seller and constitutes
the legal, valid and binding obligation of the Mortgage Loan Seller,
enforceable against the Mortgage Loan Seller in accordance with the terms of
the Mortgage Loan Purchase Agreement, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law), and except to the extent rights to
indemnity and contribution may be limited by applicable law [provided, however,
that the foregoing exceptions may be stated in a form customarily given by the
opinion giver for opinions of this type as long as such form is reasonably
acceptable to the Company and the other parties to the Pooling and Servicing
Agreement].
3. The execution and delivery of the Mortgage Loan Purchase
Agreement by the Mortgage Loan Seller and the performance of its obligations
under the Mortgage Loan Purchase Agreement does not conflict with or violate
any provision of any federal or State of New York statutory law or regulation
to which the Mortgage Loan Seller is subject, the conflict with which or the
violation of which would have a material and adverse effect on the validity of
the Mortgage Loans or the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement, or conflict with, result in a
breach of, or constitute a default under, any of the terms, conditions or
provisions of any of the Mortgage Loan Seller's organizational documents, or,
to our knowledge, (i) any agreement or instrument to which the Mortgage Loan
Seller is a party or by which it is bound, or (ii) any order, judgment or
decree of a federal or State of New York court, regulatory body, administrative
agency or government body having jurisdiction over the Mortgage Loan Seller the
conflict with which or the breach or default of which (in the case of either
(i) or (ii)) would have a material and adverse effect on the validity of the
Mortgage Loans or the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement.
4. To our knowledge, there is no action, suit or proceeding
pending or overtly threatened in writing, against the Mortgage Loan Seller in
any court or by or before any other governmental agency or instrumentality
which (either by itself or in combination with any other such actions, suits or
proceedings)
C-1
would materially and adversely affect the validity of the Mortgage Loans or the
ability of the Mortgage Loan Seller to carry out the transactions of the
Mortgage Loan Seller contemplated by this Agreement.
No consent, approval, authorization or order of any federal
or State of New York court or governmental agency or body is required for the
execution, delivery and performance by the Mortgage Loan Seller of or
compliance by the Mortgage Loan Seller with the Mortgage Loan Purchase
Agreement or the consummation of the transactions of the Mortgage Loan Seller
contemplated by the Mortgage Loan Purchase Agreement, other than those which
have been obtained by the Mortgage Loan Seller.
C-2
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., SERIES 1998-C3
SCHEDULE I
(i) Immediately prior to the sale, transfer and assignment of
the Mortgage Loans to the Company, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan, and had
full right and authority to sell, transfer and assign such Mortgage Loan;
(ii) The Mortgage Loan 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, and none of the
Mortgage Note, the Mortgage or any other related loan document prohibits or
restricts such transfer;
(iii) Each related Mortgage Note, Mortgage, Assignment of
Leases (if any) and other agreement executed in connection with such Mortgage
Loan is, the legal, valid and binding obligation of the related Mortgagor
(subject to any non-recourse provisions therein and any state anti-deficiency
or market deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws affecting
the enforcement of creditors' rights and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law), and any lost note affidavit included in the Mortgage File
in lieu of a Mortgage Note does not impair the ability of the holder thereof
to enforce the terms of such Mortgage Note;
(iv) Each related Assignment of Leases, or, if none, the
assignment of leases and rents contained in the related Mortgage creates a
valid, first priority assignment of, or a valid first priority security
interest in, the related leases and rents, and no other person owns any
interest therein superior to or of equal priority with the interest created
under such assignment, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws affecting the enforcement of
creditors' rights and to general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law); and
either each Mortgage Loan includes an Assignment of Leases or the related
Mortgage contains an assignment of leases and rents;
(v) Each related assignment of Mortgage from the Mortgage
Loan Seller to the assignee named therein is in recordable form and any
related assignment of Assignment of Leases, if any, is in recordable form and
any related assignment of any other agreement executed in connection with
such Mortgage
-1-
Loan, from the Mortgage Loan Seller to the assignee named therein is in
recordable form (if the recording thereof is appropriate) and each constitutes
the legal, valid, binding and enforceable assignment from the Mortgage Loan
Seller to the assignee named therein, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights or by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law);
(vi) Since origination, (a) neither such Mortgage Loan nor
any related Mortgage Loan documents have been modified, altered, satisfied,
canceled, subordinated or rescinded, and (b) no material portion of the
related Mortgaged Property has been released from the lien of the related
Mortgage, in any manner (in the case of either subclause (a) or subclause (b)
of this clause (vi)) which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, with the exception of any modification,
alteration, satisfaction, cancellation, subordination, recission or release
evidenced by a written instrument which was entered into prior to the Cut-Off
Date, has been recorded in the applicable public recording office if
necessary to maintain the priority of the lien of the related Mortgage and
related security agreements, if any, and is being delivered to the Company as
part of the related Mortgage File; and none of the related Mortgages contain
terms which provide for release of any portion of the Mortgaged Property from
the lien of the Mortgage in any manner which materially and adversely affects
the adequacy of the security provided by the Mortgaged Property;
(vii) (a) Each related Mortgage is a valid and enforceable
first lien on the related Mortgaged Property (subject to the matters
described in clause (viii) below), and (b) such Mortgaged Property is free
and clear of any liens or encumbrances (including any mechanics' and
materialmen's liens) which are prior to or equal with the lien of the related
Mortgage, except those which are described in a lender's title insurance
policy (as described in clause (viii) below), subject, in the case of either
subclause (a) or subclause (b) above, to any security interests in personal
property which, individually or in the aggregate, do not materially interfere
with the security intended to be provided for such Mortgage Loan;
(viii) The lien of each related Mortgage is a first priority
lien in the outstanding principal amount of such Mortgage Loan (as set forth
on the Mortgage Loan Schedule) after all advances of principal and is insured
by an ALTA lender's title insurance policy (or a pro forma or specimen
policy, escrow letter or a marked up title insurance commitment on which the
required premium has been paid and which evidences that such title insurance
policy will be issued) in an amount equal to at
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least the outstanding principal amount of such Mortgage Loan from a title
insurer which, to the Mortgage Loan Seller's knowledge, after due diligence
customarily performed by commercial mortgage lenders, is qualified and
licensed in the applicable jurisdiction, (except in Iowa) or its equivalent
as adopted in the applicable jurisdiction, insuring the Mortgage Loan Seller,
its successors and assigns, subject only to (a) the lien of real property
taxes, ground rents, water charges, sewer rents and assessments not yet
delinquent or accruing interest or penalties, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public record,
none of which, individually or in the aggregate, materially interferes with
the current use or operation 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
exclusions and exceptions (general and specific) set forth in such policy,
(A) none of which, individually or in the aggregate, materially interferes
with 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 use or operation of the
Mortgaged Property and (B) with respect to those Mortgage Loans, the Mortgage
Files of which do not contain a survey on the Closing Date, none of which
constitute exceptions or exclusions for the absence of a survey; the original
holder of the Mortgage, and/or its successor or assigns, are the sole named
insureds under such policy; such policy is assignable to the Company and the
Trustee without the consent of or any notification to the insurer, and is now
or, when issued, will be in full force and effect and will remain so upon the
consummation of the transactions contemplated by this Agreement; no claims
have been made under such policy, and the Mortgage Loan Seller has not done
anything, by act or omission, and the Mortgage Loan Seller has no knowledge of
any matter, which would impair or diminish the coverage of such policy;
(ix) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances thereunder and the
Mortgage Loan Seller covenants that it will not make any future advances
under the Mortgage Loan to the related Mortgagor;
(x) As of the date of its origination, there was no
proceeding pending or to the Mortgage Loan Seller's knowledge, threatened,
for the total or partial condemnation of any material portion of the
Mortgaged Property, and, as of the Cut-Off Date the Mortgage Loan Seller has
no knowledge and has received no notice of any proceeding pending, nor to the
Mortgage Loan Seller's knowledge, is any proceeding threatened, for the total
or partial condemnation of all or any material portion of such Mortgaged
Property, and, to the Mortgage Loan Seller's knowledge, based upon a site
inspection conducted in
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connection with origination of the Mortgage Loan and a review of the related
engineering report, each related Mortgaged Property is free and clear of any
material damage, except for which funds have been escrowed, that would affect
materially and adversely the value of such Mortgaged Property as security for
the Mortgage Loan;
(xi) The related Mortgagor has represented to the Mortgagee
or the Tenant under the related Credit Lease has covenanted that, as of the
date of origination of such Mortgage Loan, and, to the Mortgage Loan Seller's
knowledge, based on customary due diligence performed by prudent commercial
mortgage lenders, such Mortgagor and the lessee and/or operator of the
related Mortgaged Property was in possession of all material licenses,
permits and other authorizations necessary and required by all applicable
laws for the conduct of its business on the related Mortgaged Property and
all such licenses, permits and authorizations were valid and in full force
and effect;
(xii) Except with respect to the Mortgage Loans listed on
Exhibit I-XII, the Mortgage Loan contains no equity participation by the
lender and does not have a shared appreciation feature, other contingent or
additional interest feature, a negative amortization feature, or any negative
amortization which is continuing as of or arises after the Cut-Off Date;
(xiii) Each of the Mortgage Loan is a whole loan and no other
party holds a participation interest in such Mortgage Loan;
(xiv) The Mortgage Rate (exclusive of any default interest,
late charges, prepayment premiums or defeasance deposits) of each Mortgage
Loan complied as of the date of origination with, or such Mortgage Loan is
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury; any and all other requirements of any
federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity
or disclosure laws, applicable to each Mortgage Loan have been complied with
in all material respects as of the date of origination of such Mortgage Loan;
(xv) All taxes (including taxes payable in future
installments) and governmental assessments which would be a lien on the
Mortgaged Property and that prior to the Cut-Off Date have become delinquent
in respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established or
the Tenant under the Credit Lease is required to pay all such taxes,
assessments or other charges. For purposes of this representation and
warranty, taxes and assessments and installments thereof shall not be
considered delinquent until the earlier of (a) the date on which interest
and/or penalties
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would first be payable thereon and (b) the date on which enforcement action
is entitled to be taken by the related taxing authority;
(xvi) All escrow deposits and payments required pursuant to
the Mortgage Loan (except for escrow deposits and payments which have been
applied in accordance with the applicable Mortgage Loan documents) are in the
possession, or under the control, of the Mortgage Loan Seller or its agent
and all amounts required to be deposited by the Mortgagor under the Mortgage
Loan documents (inclusive of any applicable grace or cure period) as of the
date hereof have been deposited and all such escrows and deposits (except for
escrow deposits and payments which have been applied in accordance with the
applicable Mortgage Loan documents) have been conveyed by the Mortgage Loan
Seller to the Company and identified as such with appropriate detail;
(xvii) Each related Mortgaged Property is insured by a fire
and extended perils insurance policy (and the Seller has not received a
notice of termination thereof) in an amount not less than the lesser of (A)
the outstanding principal balance of the Mortgage Loan and (B) the full
replacement cost of the improvements located on the related Mortgaged
Property, and in all events the amount necessary to avoid the operation of
any co-insurance provisions with respect to the Mortgaged Property; with
respect to each related Mortgaged Property (except where the Tenant in a
Credit Lease Loan has no offset or abatement rights in the event of any
casualty), the Mortgagor has and is required under the terms of the related
Mortgage to maintain business interruption insurance (or loss of rents
insurance providing coverage of at least twelve months) and comprehensive
general liability insurance in amounts generally required by commercial
mortgage lenders for similar properties and in all events, an amount of at
least $1 million per occurrence and such other insurance of such amounts and
types as would be required by prudent mortgage lenders for Mortgaged
Properties of the same types in similar locations; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies contain a standard "New York" mortgagee clause for
the benefit of the holder of the related Mortgage and its successors and
assigns, and require prior notice to the insured and to the mortgagee of
termination or cancellation, and no such notice has been received; each
related Mortgage or loan agreement obligates the related Mortgagor to
maintain insurance as described above and, at such Mortgagor's failure to do
so, authorizes the Mortgagee to maintain such insurance at the Mortgagor's
cost and expense and to seek reimbursement therefor from such Mortgagor,
provided, however, the obligation of the Mortgagor pursuant to the Mortgage
or loan agreement to maintain such insurances is waived so long as the Tenant
under the related Credit Lease is complying with such requirements through a
program of Tenant self-insurance;
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(xviii) Each Mortgage provides that any insurance proceeds in
respect of a casualty, other than business interruption/rental income
insurance, and any condemnation awards (or condemnation proceeds) or
insurance proceeds, will be applied either to the repair or restoration of
the Mortgaged Property or to the repayment of the outstanding principal
balance of the Mortgage Loan, except in the instance of any claims paid
pursuant to any special risk casualty/condemnation insurance policies under
which the lender is the named insured (as opposed to merely loss payee), in
which case such proceeds may be applied at the discretion of the holder of
the related Mortgage Note;
(xix) (A) To the best of the Mortgage Loan Seller's
knowledge, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note, and 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 Mortgage Loan Seller in any
of clauses (x), (xv), (xx), (xxii) and (xxvii) of this Schedule I or in any
clause of Schedule 2, and (B) the Mortgage Loan 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 Company, and pursuant to the
terms of the related Mortgage or the related Mortgage Note, 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;
(xx) Except for the Mortgage Loans listed on Exhibit I-XX, no
Monthly Payment on such Mortgage Loan has been more than 30 days delinquent
beyond the related Due Date from the later of one year prior to the Cut-Off
Date, or the date of origination of such Mortgage Loan, through the Cut-Off
Date;
(xxi) Each related Mortgage contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the Mortgaged
Property of the principal benefits of the security, including realization by
judicial or, if applicable, non-judicial foreclosure, subject to the effects
of bankruptcy, insolvency, reorganization, moratorium, and state laws
affecting the enforcement of creditors' rights and to general principles of
equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law);
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(xxii) One or more environmental site assessments were
performed by an environmental consulting firm independent of the Mortgage Loan
Seller and the Mortgage Loan Seller's affiliates with respect to the related
Mortgaged Property during the 14 months prior to the origination date and the
Mortgage Loan Seller, having made no independent inquiry other than to review
the report(s) prepared in connection with the assessments referred to herein,
has no knowledge of any material and adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed in such
report(s); in each case where the report disclosed an adverse environmental
condition or circumstance, either (a) the action recommended in such report(s)
has been taken, including implementation of an operations and maintenance
agreement, (b) funds sufficient to pay for such recommended action have been
escrowed, or (c) the Tenant under a Credit Lease Loan has the obligation to
remedy such condition or circumstance;
(xxiii) Each related Mortgage, Mortgage Note or loan
agreement contains provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without consent of the
mortgagee, the related Mortgaged Property, or any majority interest therein,
is directly or indirectly transferred or sold (other than certain transfers
to affiliated persons or other transfers which are permitted as specified
therein) or is encumbered in connection with subordinate financing (other
than subordinate financing permitted thereunder upon the satisfaction of debt
service coverage or similar criteria specified therein;
(xxiv) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Internal Revenue Code of
1986, as amended (the "Code"). For this purpose, Section 860G(a)(3) of the
Code shall be applied without regard to the rule contained in Treasury
Regulations Section 1.860G-2(f)(2) which treats a defective mortgage loan as
a "qualified mortgage" under certain circumstances. Accordingly, the Mortgage
Loan Seller represents and warrants that each 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
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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;
(xxv) As of the Cut-Off Date, the Mortgage Loan Schedule is
true and correct in all material respects;
(xxvi) Prepayment Premiums and Yield Maintenance Charges
payable with respect to the Mortgage Loan, if any, constitute "customary
prepayment penalties" within the meaning of Treasury Regulations Section
1.860G-1(b)(2);
(xxvii) The Mortgage File contains an appraisal or market
value study of the related Mortgaged Property, which appraisal is signed by a
qualified appraiser or applicable consultant who, to the Mortgage Loan
Seller's knowledge, had no interest, direct or indirect, in the Mortgaged
Property or in any loan made on the security thereof, and whose compensation
is not affected by the approval or disapproval of the Mortgage Loan;
(xxviii) After such inquiry that is customary for a prudent
commercial mortgage lender to make, to the Mortgage Loan Seller's knowledge,
at the time of the origination of the related Mortgage Loan, (a) none of the
material improvements which were included for the purposes of determining the
appraised value of the related Mortgaged Property lay outside of the
boundaries and building restriction lines of such property (except those
improvements which are legal non-conforming uses and/or except for immaterial
encroachments or where the same is covered by a title insurance endorsement
or affirmative title insurance coverage), and (b) no improvements on
adjoining properties materially encroach upon such Mortgaged Property, or the
same is covered by title insurance endorsement or affirmative title insurance
coverage and (c) the Mortgaged Property is accessible from a public road;
(xxix) The related Mortgagor has covenanted in the Mortgage
Loan documents or the related Tenant has covenanted
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in the related Credit Lease to maintain the related Mortgaged Property in
compliance with all applicable laws, zoning ordinances, rules, covenants and
restrictions affecting the construction, occupancy, use and operation of such
Mortgaged Property, and the related originator performed the type of due
diligence in connection with the origination of such Mortgage Loan customarily
performed by prudent commercial mortgage lenders or lenders on credit leased
properties with respect to the foregoing matters; the Mortgage Loan Seller has
received no notice of any violation of (and, to the Mortgage Loan Seller's
knowledge, based on customary due diligence, the related Mortgaged Property
does not violate) any applicable laws, zoning ordinances, rules, covenants or
restrictions where such violation or noncompliance would materially and
adversely affect the construction, occupancy, use or operation of such
Mortgaged Property;
(xxx) With respect to each Mortgage Loan which as of the
Cut-Off Date has a principal balance of at least $15 million, except with
respect to the Mortgage Loan listed on Exhibit I-xxx, the related Mortgagor
is an entity which has represented and covenanted in connection with the
origination of the Mortgage Loan, and whose organizational documents provide,
that so long as the Mortgage Loan is outstanding it will be a single-purpose
entity. For this purpose, "single-purpose entity" shall mean a person, other
than an individual, which does not and is not permitted to engage in any
business unrelated to the related Mortgaged Property and its (or their)
financing, does not have any material assets other than those related to its
interest in such Mortgaged Property (or Mortgaged Properties) or its (or
their) financing, or any indebtedness other than as permitted by the related
Mortgage or the other documents in the Mortgage Loan File, and such Mortgagor
has covenanted under the Mortgage that it will maintain its own books and
records separate and apart from any other person, and holds itself out as
being a legal entity, separate and apart from any other person;
(xxxi) [Reserved];
(xxxii) To the best knowledge of the Mortgage Loan Seller no
Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding;
(xxxiii) To the best of Mortgage Loan Seller's knowledge,
there is no right of rescission, offset, abatement, diminution, defense or
counterclaim to the Mortgage Loan (including the defense of usury), nor will
the operation of any of the terms of the Mortgage Note or the Mortgage, or
the exercise of any rights thereunder, render the Mortgage Note or the
Mortgage unenforceable, in whole or in part (excluding provisions relating to
default interest, yield maintenance charges, prepayment premiums or
defeasance deposits), or subject to any right of rescission, offset,
abatement, diminution, valid defense or counterclaim (including the defense
of usury or the
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violation of any applicable disclosure or consumer credit laws), except in
any such case as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of
creditors' rights and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
to the Mortgage Loan Seller's knowledge, no such right of rescission, offset,
abatement, diminution, defense or counterclaim has been asserted with respect
thereto;
(xxxiv) In the case of any Mortgage which is a deed of trust,
a trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the deed of trust
or has been substituted in accordance with applicable law, and no fees or
expenses are, or will become, payable to the trustee under the deed of trust,
except in connection with a trustee's sale after default by the Mortgagor or
in connection with any full or partial release of the Mortgaged Property or
related security for the Mortgage Loan following the payment of the Mortgage
Loan in full;
(xxxv) Either the improvements located on the Mortgaged
Property are not located in a federally designated special flood hazard area
or the Mortgagor or Tenant is required under the terms of the related
Mortgage to maintain, or the mortgagee maintains, flood insurance with
respect to such improvements in an amount equal to the lesser of (a) the full
insurable value of the Mortgaged Property or (b) the amount available under
the National Flood Insurance Act or the Tenant under the related Credit Lease
has no right to xxxxx or offset rent or terminate such Credit Lease in the
event of flood;
(xxxvi) If the Mortgaged Property is subject to any leases,
the Mortgagor is the owner and holder of the landlord's interest under any
leases and the related Mortgage or Assignment of Leases provides for the
appointment of a receiver for rents (in accordance with applicable law) or
allows the Mortgagee (in accordance with applicable law) to enter into
possession to collect rent or provides for rents to be paid directly to
Mortgagee;
(xxxvii) The Mortgage Note is not secured by a security
interest in any collateral that is not being transferred hereunder;
(xxxviii) Each Mortgage Loan, if any, that is
cross-collateralized is cross-collateralized only with one or more other
Mortgage Loans being transferred hereunder;
(xxxix) The origination (or acquisition, as the case may be),
servicing and collection practices used with respect to the Mortgage Loan by
the Mortgage Loan Seller and, to the Mortgage Loan Seller's knowledge, by any
prior holder of the
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Mortgage Loan, have been legal, proper and prudent in all material respects
and have met customary industry standards;
(xl) No advance of funds has been made other than pursuant
to the loan documents, directly or indirectly, by the Mortgage Loan Seller to
the Mortgagor and, to the Mortgage Loan Seller's 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, provided, however, rental
payments or similar payments made by the Tenant under the related Credit
Lease directly to the Mortgage Loan Seller (or its loan servicer or agent)
shall not be deemed a breach of this representation;
(xli) UCC Financing Statements have been filed and/or recorded
in all places necessary to perfect a valid security interest in all material
furniture, fixtures and equipment and other personal property owned by a
Mortgagor and located on each Mortgaged Property and for which perfection is
accomplished by the filing or recording of a UCC financing statement, 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 first lien and first priority
security interest on such material furniture, fixtures and equipment except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights or by the application of
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and subject to any security
interests in such personal property which, individually or the aggregate, do
not materially interfere with the security intended to be provided for the
related Mortgage Loan; and
(xlii) The Mortgage Loan documents do not provide for or
permit, without the consent of the mortgagee, and to the Mortgage Loan
Seller's knowledge, the Mortgagor does not have, any indebtedness for borrowed
money secured by a mortgage encumbering the Mortgaged Property other than the
Mortgage Loan. The creditor (the "Subordinate Lender") under such secured
indebtedness for borrowed money ("Other Debt") of the Mortgagor has entered
into a subordination agreement with the Mortgage Loan Seller (or the Mortgage
Loan originator) pursuant to which (A) the Subordinate Lender has agreed to
fully subordinate the Other Debt to the Mortgage Loan (collectively, the
"Senior Debt"), (B) the Subordinate Lender has agreed not to declare a
default or exercise any remedies with respect to the Other Debt until the
Senior Debt has been indefeasibly satisfied other than to realize upon
certain ownership interests in the Mortgagor
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pledged as security for the Other Debt, (C) the Subordinate Lender has agreed
not to invoke any bankruptcy proceeding and has agreed to assign to the
mortgagee any of its rights in a bankruptcy proceeding, and (D) such
subordination agreement is assignable to the Company and its successors and
assigns and is being assigned hereunder and is part of the Mortgage File;
(xliii) To the Mortgage Loan Seller's knowledge based on
information obtained from the related Mortgagors at the time of origination,
a list of borrowers or groups of affiliated borrowers with multiple Mortgage
Loans is attached hereto as Exhibit I-XLIII(A) and, as of the Cut-Off Date,
the aggregate principal amount of any Mortgage Loan or group of Mortgage
Loans made to one borrower or group of affiliated borrowers does not exceed
the applicable amount set forth in Exhibit I-XLIII(B) attached hereto;
(xliv) The Mortgage Loan has a Mortgage Rate of at least
6.170% per annum;
(xlv) The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor (or its principals) for
damages sustained in connection with certain circumstances including fraud,
misappropriation, material misrepresentation and other matters expressly set
forth in the related Mortgage Loan documents;
(xlvi) The Mortgage Loan Seller (or Mortgage Loan originator)
has inspected or caused to be inspected each related Mortgage Property within
twelve months prior to origination;
(xlvii) Except as set forth in Schedule II, the Mortgage Loan
is secured by a fee interest and is not secured in whole or in part by a
ground lease;
(xlviii) To the Mortgage Loan Seller's actual knowledge, there
are no pending actions, suits or proceedings by or before any court or
governmental authority against or affecting the related Mortgagor or
Mortgaged Property that are reasonably likely to materially and adversely
affect the ability of the Mortgagor to pay principal, interest or any other
amount due under such Mortgage Loan or the value of the Mortgaged Property;
(xlix) Each Mortgaged Property constitutes one or more
complete separate tax lots or parcels; and
(l) Each Mortgage Loan containing provisions for defeasance
of mortgage collateral either (i) requires the prior written consent of, and
compliance with the conditions set by, the holder of the Mortgage Loan, or
(ii) requires that (A) defeasance may not occur prior to the time permitted
by applicable REMIC Provisions (if applicable), (B) the replacement
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collateral consist of U.S. government securities in an amount sufficient to
make all scheduled payments under the Mortgage Note when due, (C) the loan be
assumed by a Single Purpose Entity designated by the holder (or the borrower
or the mortgagor and approved by the holder) of the Mortgage Loan and (D)
counsel provide an opinion that the Trustee has a perfected security interest
in such collateral prior to any other claim or interest.
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SCHEDULE II
For each Mortgage Loan identified on the Mortgage Loan
Schedule as being secured by a leasehold interest under a ground lease, the
Mortgage Loan Seller hereby represents and warrants:
(A)(i) the Mortgage Loan is also secured by the related fee
interest or (ii) the ground lease represents a non-essential portion of the
Mortgaged Property, and the ground lease has an original term (or an original
term plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the Mortgagor, or the mortgagee
if the mortgagee acquires the related Mortgaged Property upon foreclosure,
assignment-in-lieu of foreclosure or otherwise) that extends not less than 10
years beyond the stated maturity of the related Mortgage Loan, and the
Mortgage is not and will not be subject to any other Mortgage on the fee
interest; or
(B) if the Mortgage Loan in whole or material part is secured
by a Mortgage constituting a valid first lien on the interest of the
Mortgagor as lessee under a ground lease with respect to a portion or all of
the related Mortgaged Property, and is not secured by the related fee
interest, then the Mortgage Loan Seller represents and warrants the
following:
(i) The ground lease (which shall mean such ground lease, all
amendments and modifications thereof and any related estoppels or agreements
from ground lessor) or a memorandum regarding it has been duly recorded. The
ground lease permits the interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of the related Mortgaged
Property by such lessee, its successors or assigns in a manner that would
adversely affect the security provided by the related Mortgage. There has
been no material change, satisfaction or termination in the terms of such
ground lease since its recordation, except by written instruments, all of
which are included in the related Mortgage File;
(ii) The lessor under such ground lease has agreed in a
writing included in the related Mortgage File that the ground lease may not
be amended, modified, canceled or terminated without the prior written
consent of the Mortgagee and that any such action without such consent is not
binding on the mortgagee, its successors or assigns, except 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, but remains uncured beyond the
applicable cure period;
(iii) The ground lease has an original term (or an original
term plus one or more optional renewal terms, which, under all circumstances,
may be exercised, and will be enforceable, by the mortgagee) that extends not
less than 10 years beyond the stated maturity of the related Mortgage Loan;
-1-
(iv) The ground lessee's interest in the ground lease is not
subject to any liens or encumbrances superior to, or of equal priority with,
the Mortgage (including without limitation, the rights of any fee-mortgage,
if any) other than the related ground lessor's related fee interest and any
exceptions set forth in the related title insurance policy which exceptions
do not, and are not reasonably likely to, materially and adversely interfere
with (1) the ability of the related Mortgagor timely to pay in full the
principal and interest on the related Mortgage Note or (2) the use of such
Mortgaged Property for the use currently being made thereof;
(v) The ground lease is assignable to the Trustee 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);
(vi) As of the date of origination of the Mortgage Loan and
to the Mortgage Loan Seller's knowledge, as of the Cut-Off Date, the ground
lease is in full force and effect and no default has occurred, and to the
Mortgage Loan Seller's knowledge, there is no existing condition which, but
for the passage of time or giving of notice, would result in a default under
the terms of the ground lease;
(vii) The ground lease or other written agreement signed by
the lessor included in the Mortgage File requires the lessor to give notice
of any default by the lessee to the mortgagee. The ground lease or other
written 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;
(viii) The mortgagee is permitted a reasonable opportunity,
which may be concurrent and coterminous with the Mortgagor's rights
thereunder (including, where necessary, sufficient time to gain possession of
the interest of the lessee under the ground lease through legal proceedings,
or to take other action so long as the mortgagee is proceeding) to cure any
default under the ground lease which is curable after the receipt of notice
of any default before the lessor may terminate the ground lease;
(ix) The ground lease does not impose any restrictions on
subletting by the mortgagee that would be viewed as commercially unreasonable
by a prudent commercial mortgage lender;
(x) The ground lease or the related Mortgage provides that
any related insurance proceeds or condemnation award (other than in respect
of a total or substantially total loss or taking in which case such amounts
shall be paid to the mortgagee) will be applied either to the repair or
restoration of all or part of the related Mortgaged Property, with the
-2-
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 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 a prudent 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);
(xi) Until the principal balance and accrued interest are
paid in full, neither the lessee nor the lessor under the ground lease will
have the option to terminate or modify the ground lease without prior written
consent of the mortgagee as a result of any casualty or partial condemnation,
except to provide for an abatement of the rent;
(xii) Except as set forth on Exhibit II-XII, under the terms
of the related ground lease or other written agreement with the ground
lessor, upon request, the ground lessor is required to enter into a new lease
with mortgagee upon termination of the Ground Lease for any reason, on
substantially similar terms and conditions as the old lease; and
(xiii) Except as set forth on Exhibit II-XIII, the ground
lease does not provide for an increase in rental payments during the term of
the related Mortgage Loan except for scheduled increases which are the
responsibility of the related Tenant under the Credit Lease.
-3-
SCHEDULE III
For each Mortgage Loan identified on the Mortgage Loan Schedule as a
Credit Lease Loan, the Mortgage Loan Seller hereby represents and warrants
that, except as otherwise disclosed on the exhibits attached hereto, the
following:
(i) The base lease payments due under the related Credit
Lease are equal to or greater than the payments due with respect to the
related Mortgage Loan, and, as to the Bondable Leases, are payable without
setoff, counterclaim, recoupment, abatement, reduction or defense;
(ii) The Mortgagor does not have monetary obligations under
the related Credit Lease, and every monetary obligation associated with
managing, owning, developing and operating the leased property, including,
but not limited to, the costs associated with utilities, taxes, insurance,
maintenance, payments under ground leases, and repairs is an obligation of
the related Tenant, except for those repair or other items for which the
Mortgagee has required regular deposits into an escrow account maintained by
the Mortgagee or its designee;
(iii) The Mortgagor does not have any material non-monetary
obligations under the related Credit Lease, except for the delivery of
possession of the leased property;
(iv) The Mortgagor has not made any representation or
warranty in the related Credit Lease, a breach of which would result in the
termination of, or an offset or abatement with respect to, such Credit Lease;
(v) (A) Except as with respect to the Mortgage Loans listed
on Exhibit III-V(A), other than due to a default by the Mortgagor under a
related Credit Lease which is not a Bondable Lease, the Tenant cannot
terminate such Credit Lease for any reason other than in certain events of
casualty or condemnation, which events are insured under a Lease Enhancement
Policy, and (B), except with respect to the Mortgage Loan listed on Exhibit
III-V(B), in each case where the term of the Credit Lease is shorter than the
amortized Mortgage term, the balloon amount of such related Mortgage Loan
due at the scheduled maturity thereof is insured by a Lease Enhancement
Policy;
(vi) In the event the related Tenant assigns or sublets the
related leased property, such Tenant (and if applicable, the related
guarantor) remains obligated under the related Credit Lease;
(vii) Each property related to a Credit Lease Loan is one or
more separate tax lots;
(viii) The related Tenant has agreed to indemnify the
Mortgagor from
1
any claims of any nature (a) to which the Mortgagor is subject because of such
Mortgagor's estate in the leased property, or (b) arising from (i) injury to
or death of any person or damage to or loss of property on the leased property
or connected with the use, condition or occupancy of the leased property,
(ii) Tenant's violation of the related Credit Lease, or (iii) any act or
omission of the Tenant;
(ix) The related Tenant has agreed to indemnify the Mortgagor
from any claims of any nature arising as a result of any hazardous material
affecting the leased property and due to such Tenant's use of the leased
property;
(x) In connection with Credit Lease Loans with respect to
which a lease guarantee exists, the related guarantor (which is the rated
entity affiliated with the Tenant) guarantees the payment due under the
related Credit Lease and such guarantee, on its face, contains no conditions
to such payment, other than a notice and right to cure; the lease guarantee
is the legal, valid and binding obligation of the related guarantor, and the
lease guarantee is assignable together with the Credit Lease without further
consent of the related guarantor; and the guaranty provides that it is
unconditional, irrevocable and absolute, and is the guaranty of both the
performance and payment of the financial obligations of the Tenant under the
related Credit Lease, and does not provide for offset, counterclaim or
defense;
(xi) Each Credit Lease Loan, except for those Mortgage Loans
listed on Exhibit III-XI, which has a Balloon Payment due at maturity which
is not covered by a corresponding lease payment from the Tenant, has the
benefit of a residual value insurance policy, such policy has been obtained,
and with respect to the Credit Leases other than Bondable Leases, the
required premiums have been paid;
(xii) Each Credit Lease Loan, except for those Mortgage Loans
listed on Exhibit III-XII, which gives the Tenant a right to terminate such
Credit Lease in certain events of casualty or condemnation has been insured
pursuant to a special risk insurance policy (insuring lease termination in
the event of casualty, condemnation, or both, as may be applicable) and the
required premiums have been paid;
(xiii) The list of lease guarantors or Tenants of the related
Credit Lease, attached as Exhibit III-XIII hereto, is accurate in all
material respects;
(xiv) Any obligation or liability imposed by any easement or
reciprocal easement agreement is an obligation of the Tenant and is without
recourse or liability to the Mortgagor;
2
(xv) Except for Double Net Leases and Triple Net Leases, and
except for those Bondable Leases which afford the related Tenant the right to
terminate the Credit Lease upon the occurrence of certain casualty and/or
condemnation events upon payment of an amount sufficient to defease or pay
off the related Mortgage Loan, the obligations of the Tenant under the
related Credit Lease, including, but not limited to, the obligation to pay
fixed and additional rent, are not affected by reason of any damage to or
destruction of any portion of the leased property, any taking of the leased
property or any part thereof by condemnation or otherwise, or any
prohibition, limitation, interruption, cessation, restriction, prevention or
interference of the Tenant's use, occupancy or enjoyment of the leased
property;
(xvi) (a) Based on an Estoppel Letter from the Tenant as of
the Mortgage Loan's origination date, no default by the Mortgagor or the
Tenant has occurred under the related Credit Lease and there is no existing
condition which, but for the passage of time or the giving of notice, or both
would result in a default under the terms of such Credit Lease; (b) none of
the terms of the Credit Lease have been impaired, waived, altered or modified
in any respect (except as described in the related tenant estoppel, (c) no
Tenant has been released, in whole or in part, from its obligations under the
Credit Leases, (d) there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to any Credit Lease, nor will the
operation of any of the terms of the Credit Leases, or the exercise of any
rights thereunder, render the Credit Lease unenforceable, in whole or in
part, or subject to any right of rescission, offset, abatement, diminution,
defense or counterclaim, and no such right of rescission, offset, abatement,
diminution, defense or counterclaim has been asserted with respect thereto
and (e) each Credit Lease has a term ending on or after the final maturity of
the related Credit Lease Loan;
(xvii) The Credit Lease is in full force and effect and is a
legal, valid, binding and enforceable agreement of the related Tenant subject
to applicable bankruptcy, insolvency, reorganization, moratorium and state
laws affecting the enforcement of creditors' rights and to general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(xviii) In the event that the Trustee acquires title to a
Mortgaged Property by foreclosure or otherwise, the Mortgagor's interest
under the related Credit Lease is freely assignable by the Trustee and its
successors and assigns to any person without the consent of the Tenant (but
with notice), and in the event the Mortgagor's interest is so assigned, the
Tenant will be obligated to recognize the assignee as Mortgagor under such
Credit Lease;
3
(xix) The Tenant has delivered a subordination,
non-disturbance and attornment agreement, and an Estoppel Letter with respect
to the related Credit Lease;
(xx) The Tenant has agreed to notify the Mortgagee of any
default under the related Credit Lease and to provide the Mortgagee with an
opportunity to cure;
(xxi) The terms of the Credit Lease may not be modified in
any material respect including, without limitation, its economic terms,
without the consent of the mortgagee thereunder; and to the knowledge of the
Mortgage Loan Seller, no Tenant has been released, in whole or in part, from
its obligations under its Credit Lease;
(xxii) Each Tenant is required to make all rental payments
directly to the Mortgagee;
(xxiii) No Mortgage Loan is secured by a Mortgaged Property
that is under construction or substantial rehabilitation;
(xxiv) The Mortgaged Property is not subject to any lease
other than the related Credit Lease, no person has any possessory interest
in, or right to occupy, the Mortgaged Property except under and pursuant to
such Credit Lease and the related Tenant is in occupancy of the Mortgaged
Property; and
(xxv) Each borrower is organized as a bankruptcy remote -
special purpose entity.
4
SCHEDULE IV
To the Mortgage Loan Sellers' knowledge, based upon
due diligence performed in the origination of the related Mortgage Loan, and to
their knowledge as of the Cut-Off Date, with respect to any Mortgage Loan that
is secured in whole or in part by a Mortgaged Property which is operated as a
residential health care facility (a "Facility"), if any:
(i) All governmental licenses, permits, regulatory
agreements or other approvals or agreements necessary or desirable for the use
and operation of each Facility as intended were as of the related date of
origination held by the related Mortgagor or the operator of the Facility, and
were in full force and effect, including, without limitation, a valid
Certificate of Need ("CON") or similar certificate, license, or approval issued
by the applicable department of health for the requisite number of beds, and
approved provider status in any approved provider payment program (collectively,
the "Licenses"); and
(ii) In connection with the most recent governmental
inspection of the Facility, as of the Cut-Off Date (a) the Facility had not
received a "Level A" (or equivalent) violation which has not been cured to the
satisfaction of the applicable governmental agency, and (b) no statement of
charges or deficiencies had been made or penalty enforcement action has been
undertaken against the Facility, its operator or the Mortgagor or against any
officer, director or stockholder of such operator or the Mortgagor by such
governmental agency, and (c) there were no violations which threatened the
Facility's, the operator's or the Mortgagor's certification for participation in
Medicare or Medicaid or the other third-party payors' programs and (d) to the
Mortgage Loan Seller's knowledge, the Mortgagor and Facility complies with all
federal, state and local laws, regulations, quality and safety standards,
accreditation standards and requirements of the applicable state department of
health and (e) there was no threatened or pending revocation, suspension,
termination, probation, restriction, limitation, or nonrenewal affecting
Mortgagor or the Facility or any participation or provider agreement with any
third-party payor to which the Mortgagor is subject.
1
EXHIBIT I-XII
-------------
MLMI-003 - 1700 Broadway
MLMI-010 - Xxxxxxx Furniture-Lewisville
MLMI-019 - Corr-Pro (Mystic) Warehouse
MLMI-048 - The Ansonia Commercial
MLMI-153 - Holiday on the Bay
EXHIBIT I-XX
------------
MLMI-024 - East 61st Street Brownstone
EXHIBIT I-XXX
-------------
MLMI-064 - Xxxxxx Mall
EXHIBIT I-XLIII(A)
------------------
Group
XXXX-000 - 0 Xxxxx
XXXX-000 - 0 Xxxxxxxxxx
Group
MLMI-017 - City Villas
MLMI-037 - Peppertree Apts
Group
MLMI-013 - Bishops Landing Apartments
MLMI-015 - Charleston Apartments
MLMI-018 - Clarendon Apartments
Group
MLMI-029 - Hartford Apartments
MLMI-044 - Royal Knight Apartments
MLMI-054 - Village Square Apartments
Group
MLMI-105 - Country Club Care Center
MLMI-106 - Crown Care Center
Group
MLMI-112 - Xxxx and Xxxxxxx Center
MLMI-115 - Santa Xxxxxx Sav-On
Group
MLMI-125 - Courtyard by Marriot - Newburgh
MLMI-126 - Albany Thruway Courtyard
MLMI-127 - Fairfield Inn Xxxxxxxxx
Group
MLMI-160 - PetsMart, Inc.
MLMI-161 - Xxxxxx Xxxxxx
MLMI-163 - Xxxxxx Xxxxxx
EXHIBIT I-XLIII(B)
------------------
$59,845,380
EXHIBIT II-XII
--------------
MLMI-064 - Xxxxxx Mall
EXHIBIT II-XIII
---------------
MLMI-003 - 1700 Broadway
MLMI-004 - 2 Northpoint
MLMI-036 - Pep Boys Plaza
MLMI-064 - Xxxxxx Mall
MLMI-125 - Courtyard by Marriott - Newburgh
MLMI-126 - Albany Thruway Courtyard
MLMI-127 - Fairfield Inn - Henrietta
EXHIBIT III-V(A)
----------------
MLMI-160 - PetsMart, Inc.
MLMI-161 - Xxxxxx Xxxxxx
MLMI-163 - Xxxxxx Xxxxxx
EXHIBIT III-V(B)
----------------
MLMI-162 - Rite Aid
EXHIBIT III-XI
--------------
MLMI-160 - PetsMart, Inc.
MLMI-161 - Xxxxxx Xxxxxx
MLMI-163 - Xxxxxx Xxxxxx
EXHIBIT III-XII
---------------
MLMI-160 - PetsMart, Inc.
MLMI-161 - Xxxxxx Xxxxxx
MLMI-163 - Xxxxxx Xxxxxx
EXHIBIT III-XIII
----------------
Property Tenant Guarantor
-------- ------ ---------
MLMI-162 Rite Aid Rite Aid
Corporation
