Exhibit 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as of
February 11, 2003 between NOMURA CREDIT & CAPITAL, INC. (the "Seller") and
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cut-Off Date, among the Purchaser as depositor, Wachovia Bank, National
Association, as master servicer (in such capacity, the "Master Servicer"),
Lennar Partners, Inc., as special servicer (in such capacity, the "Special
Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined herein have the respective meanings set
forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $285,207,152 (the "Nomura Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The Nomura Mortgage
Loan Balance, together with the aggregate principal balance of the Other
Mortgage Loans as of the Cut-Off Date (after giving effect to any payments due
on or before such date whether or not such payments are received), is expected
to equal an aggregate principal balance (the "Cut-Off Date Pool Balance") of
$937,264,149 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on February 11, 2003 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall be equal to (i) ______% of the Nomura Mortgage Loan Balance
as of the Cut-Off Date, plus (ii) $511,350, which amount represents the amount
of interest accrued on the Nomura Mortgage Loan Balance at the related Net
Mortgage Rate for the period from and including the Cut-Off Date up to but not
including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any
power of attorney related to the execution thereof, together with any
and all intervening endorsements thereon, endorsed on its face or by
allonge attached thereto (without recourse, representation or warranty,
express or implied) to the order of Xxxxx Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2003-C3 or in blank (or a lost note affidavit and indemnity with a copy
of such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage),
together with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information), of (A) the Mortgage,
(B) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (C) any other
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recorded document relating to the Mortgage Loan otherwise included in
the Mortgage File, in favor of Xxxxx Fargo Bank Minnesota, N.A., as
trustee for the registered holders of Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2003-C3,
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already assigned
pursuant to clause (iv) above), in favor of Xxxxx Fargo Bank Minnesota,
N.A., as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2003-C3, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed by
an authorized representative of the title company or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or
other evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan
or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective UCC Financing
Statement and continuation statement in favor of the Seller on record
with the applicable public office for UCC Financing Statements, an
original UCC Amendment, in form suitable for filing in favor of Xxxxx
Fargo Bank Minnesota, N.A., as trustee for the registered holders of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, as assignee, or in blank;
(ix) an original or copy of (A) any Ground Lease or (B)
any guaranty, ground lessor estoppel or environmental insurance policy;
(x) any intercreditor agreement relating to permitted
debt of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement,
security agreement or letter of credit relating to a Mortgage Loan; and
(xii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related Co-Lender
Agreement; provided that a copy of each mortgage note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
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(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. The Seller shall
reimburse the Trustee for all reasonable costs and expenses incurred for
recording any documents described in Section 2(c)(iv)(C).
(e) All documents and records (except attorney-client privileged
communications and internal correspondence and credit analysis of the Seller)
relating to each Mortgage Loan and in the Seller's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the Seller to the
Master Servicer or at the direction of the Master Servicer to the appropriate
sub-servicer, together with any related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
(g) On the Closing Date, the Seller shall pay to the Master
Servicer for deposit into the Interest Reserve Account the Interest Reserve
Amounts to be distributed on the first Distribution Date for its Interest
Reserve Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly
existing and in good standing under the laws of the State of Delaware
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law), and by public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of
this Agreement will not (A) violate the Seller's articles of
incorporation or bylaws, (B) violate any law or regulation or any
administrative decree or order to which it is subject or (C) constitute
a material
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default (or an event which, with notice or lapse of time, or both,
would constitute a material default) under, or result in the breach of,
any material contract, agreement or other instrument to which the
Seller is a party or by which the Seller is bound;
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or
have consequences that would materially and adversely affect its
performance hereunder;
(v) The Seller is not a party to or bound by any
agreement or instrument or subject to any articles of incorporation,
bylaws or any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
ability of the Seller to perform its obligations under this Agreement
or that requires the consent of any third person to the execution of
this Agreement or the performance by the Seller of its obligations
under this Agreement (except to the extent such consent has been
obtained);
(vi) No consent, approval, authorization or order
of any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of or compliance by
the Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement except as have previously been obtained,
and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement; and
(viii) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Seller will report
the transfer of the Mortgage Loans to the Purchaser as a sale of the
Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price. The
consideration received by the Seller upon the sale of the Mortgage
Loans to the Purchaser will constitute at least reasonably equivalent
value and fair consideration for the Mortgage Loans. The Seller will be
solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller is not selling the Mortgage Loans to the Purchaser with any
intent to hinder, delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I and Schedule II hereto for the benefit of the Purchaser
and the Trustee for the benefit of the Certificateholders as of the Closing
Date, with respect to (and solely with respect to) each Mortgage Loan, which
representations and warranties are subject to the exceptions set forth on
Schedule III.
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(c) If the Seller receives written notice of a Document Defect or
a Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach shall materially and adversely affect the value of the
applicable Mortgage Loan or the interests of the Certificateholders therein,
cure such Document Defect or Breach, as the case may be, in all material
respects, which shall include payment of actual or provable losses and any
Additional Trust Fund Expenses directly resulting therefrom or, if such Document
Defect or Breach (other than omissions solely due to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan at the applicable Purchase
Price not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the Master Servicer for deposit into
the Certificate Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that unless the Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is
capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, such Seller shall have an additional 90 days
to complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan); and provided, further, that with respect to such
additional 90-day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided; further, that no Document Defect (other than with respect
to a Mortgage Note, Mortgage, title insurance policy, Ground Lease or any letter
of credit) shall be considered to materially and adversely affect the value of
the related Mortgage Loan or the interests of the Certificateholders therein
unless the document with respect to which the Document Defect exists is required
in connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending any claim asserted by any borrower or
third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien or any collateral securing the Mortgage Loan or for any
immediate significant servicing obligations. For a period of two years from the
Closing Date, so long as there remains any Mortgage File relating to a Mortgage
Loan as to which there is any uncured Document Defect or Breach, the Seller
shall provide the officer's certificate to the Trustee described above as to the
reasons such Document Defect or Breach remains uncured and as to the actions
being taken to pursue cure. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance as described in clause
12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's
title insurance shall not be considered a Document Defect or Breach with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the immediately preceding paragraph,
(ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Document
Defect or Breach does not constitute a Document Defect
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or Breach, as the case may be, as to any other Crossed Loan in such Crossed
Group (without regard to this paragraph), then the applicable Document Defect or
Breach, as the case may be, will be deemed to constitute a Document Defect or
Breach, as the case may be, as to any other Crossed Loan in the Crossed Group
for purposes of this paragraph, and the Seller will be required to repurchase or
substitute for all of the remaining Crossed Loan(s) in the related Crossed Group
as provided in the immediately preceding paragraph unless such other Crossed
Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria and
satisfy all other criteria for substitution and repurchase of Mortgage Loans set
forth herein. In the event that the remaining Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Document
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the Master Servicer to determine if the
Crossed Loan Repurchase Criteria have been satisfied, so long as the scope and
cost of such Appraisal has been approved by the Seller (such approval not to be
unreasonably withheld). To the extent that the Seller is required to purchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including, with
respect to the Trustee, the Primary Collateral securing the Crossed Loans still
held by the Trustee, so long as such exercise does not impair the ability of the
other party to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loans held by such party, then the Seller and the Purchaser
shall forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Crossed Loans can be modified in a manner
that complies with this Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that such modification shall not cause an Adverse REMIC
Event.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the
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Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and (iii) the Master Servicer and the Special Servicer shall release to the
Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (i) any term
or provision of the Purchaser's Articles of Incorporation or Bylaws, (ii) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Purchaser or its
assets.
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(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Mayer, Brown, Xxxx & Maw, Charlotte,
North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Purchaser, the Seller, the Underwriters and their
respective counsel in their reasonable discretion, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
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(f) A letter from the independent accounting firm of KPMG LLP in
form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part that are required under
this Agreement to be performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that (i) such officer has
carefully examined the Specified Portions of the Prospectus Supplement and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (ii) such officer has examined the
Specified Portions of the Memorandum and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Memorandum, as of
the date thereof or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein related to the Mortgage Loans, in the light of the circumstances under
which they were made, not misleading. The "Specified Portions" of the Prospectus
Supplement shall consist of Annex A thereto, the diskette which accompanies the
Prospectus Supplement (insofar as such diskette is consistent with such Annex A)
and the following sections of the Prospectus Supplement
10
(exclusive of any statements in such sections that purport to summarize the
servicing and administration provisions of the Pooling and Servicing Agreement:
"Summary of the Prospectus Supplement--The Parties--The Mortgage Loan Sellers,"
"Summary of the Prospectus Supplement--The Mortgage Loans," "Risk Factors--The
Mortgage Loans," and "Description of the Mortgage Pool--General," "--Mortgage
Loan History," "--Certain Terms and Conditions of the Mortgage Loans," "--
Assessments of Property Condition," "--Additional Mortgage Loan Information,"
"--The Mortgage Loan Sellers," "--Underwriting Standards," and
"--Representations and Warranties; Repurchases and Substitutions." The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement and the first and second full paragraphs on page
"iii" of the Memorandum.
(e) The resolutions of the Seller's board of directors authorizing
the Seller's entering into the transactions contemplated by this Agreement, the
articles of incorporation and by-laws of the Seller, and a certificate of good
standing of the Seller issued by the State of Delaware not earlier than sixty
(60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser,
the Underwriters, the Initial Purchasers, their respective officers and
directors, and each person, if any, who controls the Purchaser or any
Underwriter within the meaning of either Section 15 of the Securities Act of
1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Memorandum, the Diskette or,
insofar as they are required to be filed as part of the Registration Statement
pursuant to the No-Action Letters, any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates, or in any revision or
amendment of or supplement to any of the foregoing or (B) any items similar to
Computational Materials and ABS Term Sheets forwarded by the Seller to the
Initial Purchasers (the items in (A) and (B) above being defined as the
"Disclosure Material"), or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; but only if and to the extent that
(1) any such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, the Disclosure Material, arises out
of or is
11
based upon an untrue statement or omission with respect to the Mortgage Loans,
the related Mortgagors and/or the related Mortgaged Properties contained in the
Data File (it being herein acknowledged that the Data File was and will be used
to prepare the Prospectus Supplement including without limitation Annex A
thereto, the Memorandum, the Diskette, any Computational Materials and ABS Term
Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (2) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact occurring
in, or with respect to, the Disclosure Material, is with respect to, or arises
out of or is based upon an untrue statement or omission of a material fact with
respect to, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Seller set forth (Y) in
the Specified Portions of each of the Prospectus Supplement and the Memorandum
and (Z) on Annex A to the Prospectus Supplement and, to the extent consistent
therewith, on the Diskette, (3) any such untrue statement or alleged untrue
statement or omission or alleged omission occurring in, or with respect to, the
Disclosure Material, arises out of or is based upon a breach of the
representations and warranties of the Seller set forth in or made pursuant to
Section 3 of this Agreement or (4) any such untrue statement or alleged untrue
statement or omission or alleged omission occurring in, or with respect to, the
Disclosure Material, arises out of or is based upon any other written
information concerning the characteristics of the Mortgage Loans, the related
obligors on the Mortgage Loans or the related Mortgaged Properties furnished to
the Purchaser or the Underwriters by the Seller; provided that the
indemnification provided by this Section 7 shall not apply to the extent that
such untrue statement or omission of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement to the extent such information was not
materially incorrect in the Data File or such Annex A, as applicable, including
without limitation the aggregation of such information with comparable
information relating to the Other Mortgage Loans. Notwithstanding the foregoing,
the indemnification provided in this Section 7(a) shall not inure to the benefit
of any Underwriter or Initial Purchaser (or to the benefit of any person
controlling such Underwriter or Initial Purchaser) from whom the person
asserting claims giving rise to any such losses, claims, damages, expenses or
liabilities purchased Certificates if (x) the subject untrue statement or
omission or alleged untrue statement or omission made in any Disclosure Material
(exclusive of the Prospectus or any corrected or amended Prospectus or the
Memorandum or any corrected or amended Memorandum) is eliminated or remedied in
the Prospectus or the Memorandum (in either case, as corrected or amended, if
applicable), as applicable, and (y) a copy of the Prospectus or Memorandum (in
either case, as corrected or amended, if applicable), as applicable, shall not
have been sent to such person at or prior to the written confirmation of the
sale of such Certificates to such person, and (z) in the case of a corrected or
amended Prospectus or Memorandum, such Underwriter or Initial Purchaser received
written notice of such correction or amendment prior to the written confirmation
of such sale. The information described in clauses (1) through (4) above is
collectively referred to as the "Seller Information". The Seller shall, subject
to clause (c) below, reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity will be in addition to any liability which the Seller may
otherwise have.
12
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-83930 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated January
28, 2003, as supplemented by the prospectus supplement dated January 28, 2003
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated January
28, 2003, relating to the Non-Registered Certificates, including all exhibits
thereto; "Registered Certificates" shall mean the Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C and Class D and Certificates; "Non-Registered
Certificates" shall mean the Certificates other than the Registered
Certificates; "Computational Materials" shall have the meaning assigned thereto
in the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
letters, the "No-Action Letters"); "Diskette" shall mean the diskette or compact
disc attached to each of the Prospectus and the Memorandum; and "Data File"
shall mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letters dated January 17, 2003 and
rendered by KPMG LLP (a "hard copy" of which Data File was initialed on behalf
of the Seller and the Purchaser).
(c) Promptly after receipt by any person entitled to
indemnification under this Section 7 (an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability that it may have to any indemnified party under this Section 7
(except to the extent that such omission has prejudiced the indemnifying party
in any material respect) or from any liability which it may have otherwise than
under this Section 7. In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in
13
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii). Unless it shall assume the
defense of any proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(e) The Purchaser and the Seller agree that it would not be just
and equitable if contribution pursuant to Section 7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the considerations referred to in Section 7(d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors
14
or officers, or any person controlling the Purchaser or the Underwriters, and
(iii) acceptance of and payment for any of the Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Artesia Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (a) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (b) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (c) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (d) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (e) the fees charged by the Rating Agencies to rate the Certificates
so rated; (f) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (g) the reasonable out-of-pocket costs and expenses
in connection with the qualification or exemption of the Certificates under
state securities or "Blue Sky" laws, including filing fees and reasonable fees
and disbursements of counsel in connection therewith, in connection with the
preparation of any "Blue Sky" survey and in connection with any determination of
the eligibility of the Certificates for investment by institutional investors
and the preparation of any legal investment survey; (h) the expenses of printing
any such "Blue Sky" survey and legal investment survey; and (i) the reasonable
fees and disbursements of counsel to the Underwriters; provided, however, Seller
shall pay (or shall reimburse the Purchaser to the extent that the Purchaser has
paid) the expense of recording any assignment of Mortgage or assignment of
Assignment of Leases as contemplated by Section 2 hereof with respect to such
Seller's Mortgage Loans. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other
15
property, including, without limitation, all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such
16
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. To the extent permitted by applicable law, the parties
hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Attorneys Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party which obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party which commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 17. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all respects
to the same extent as if they had been signatories hereof.
17
SECTION 19. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party, or third party beneficiary, against
whom such waiver or modification is sought to be enforced. No amendment to the
Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 21. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge," such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
NOMURA CREDIT & CAPITAL, INC.
By: /s/ N. Xxxxx XxXxxxx
--------------------------------------
Name: N. Xxxxx XxXxxxx
------------------------------------
Title: Authorized Agent
-----------------------------------
Address for Notices:
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as
of the Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such
Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering such Mortgage Loan. Upon
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to
such Mortgage Loan free and clear of any pledge, lien or security
interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed in connection with such Mortgage Loan is
legal, valid and binding obligation of the related Mortgagor (subject
to any non-recourse provisions therein and any state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance
with its terms, except (a) that certain provisions contained in such
Mortgage Loan documents are or may be unenforceable in whole or in part
under applicable state or federal laws, but neither the application of
any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a
whole and such Mortgage Loan documents taken as a whole are enforceable
to the extent necessary and customary for the practical realization of
the rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other
Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each
case, with respect
I-1
to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and
binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and
Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth in
paragraph (5) above and the following title exceptions (each such title
exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security intended
to be provided by such Mortgage or with the Mortgagor's ability to pay
its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property,
(c) the exceptions (general and specific) and exclusions set forth in
the applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (e) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases) and (f) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans, there are no mortgage loans that are
senior or pari passu with respect to the related Mortgaged Property or
such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing
and recording), in all public places necessary at the time of the
origination of the Mortgage Loan to perfect a valid
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security interest in all items of personal property reasonably
necessary to operate the Mortgaged Property owned by a Mortgagor and
located on the related Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and
leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant
to applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on
such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law). Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or
control of such items or actions other than the filing of UCC Financing
Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior
to the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties
would first be payable thereon and (b) the date on which enforcement
action is entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the
Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely
the value of such Mortgaged Property as security for the Mortgage Loan
and to the Seller's actual knowledge as of the Cut-Off Date there was
no proceeding pending for the total or partial condemnation of such
Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of
principal (as set forth on the Mortgage Loan Schedule) is insured by an
ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable jurisdiction,
insuring the Seller, its successors and assigns, subject only to the
Title Exceptions; the Seller or its successors or assigns is the named
insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee
of record; is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have
been paid; no claims have been made under such policy and the Seller
has not done anything, by act or omission, and the Seller has no actual
knowledge of any matter, which would impair or diminish
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the coverage of such policy. The insurer issuing such policy is either
(x) a nationally-recognized title insurance company or (y) qualified to
do business in the jurisdiction in which the related Mortgaged Property
is located to the extent required; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not
available) (a) access to public road (except as provided below) or (b)
against any loss due to encroachments of any material portion of the
improvements thereon.
13. Except as provided below, as of the date of its origination, all
insurance coverage required under each related Mortgage, which
insurance covered such risks as were customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property in
the jurisdiction in which such Mortgaged Property is located, and with
respect to a fire and extended perils insurance policy, is in an amount
(subject to a customary deductible) at least equal to the lesser of (i)
the replacement cost of improvements located on such Mortgaged
Property, or (ii) the initial principal balance of the Mortgage Loan,
and in any event, the amount necessary to prevent operation of any
co-insurance provisions; and, except if such Mortgaged Property is
operated as a mobile home park, is also covered by business
interruption or rental loss insurance, in an amount at least equal to
12 months of operations of the related Mortgaged Property (or in the
case of a Mortgaged Property without any elevator, 6 months), all of
which was in full force and effect with respect to each related
Mortgaged Property; and, except as provided below, as of the Cut-Off
Date, to the actual knowledge of the Seller, all insurance coverage
required under each Mortgage, which insurance covers such risks and is
in such amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located, is in full
force and effect with respect to each related Mortgaged Property; all
premiums due and payable through the Closing Date have been paid; and
no notice of termination or cancellation with respect to any such
insurance policy has been received by the Seller; and except for
certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to
a similar Mortgage Loan and which are set forth in the related
Mortgage, any insurance proceeds in respect of a casualty loss, will be
applied either (i) to the repair or restoration of all or part of the
related Mortgaged Property or (ii) the reduction of the outstanding
principal balance of the Mortgage Loan, subject in either case to
requirements with respect to leases at the related Mortgaged Property
and to other exceptions customarily provided for by prudent
institutional lenders for similar loans. The Mortgaged Property is also
covered by comprehensive general liability insurance against claims for
personal and bodily injury, death or property damage occurring on, in
or about the related Mortgaged Property, in an amount customarily
required by prudent institutional lenders.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect
to non-payment, 10 days prior written notice to the Mortgagee) or such
lesser period as
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prescribed by applicable law. Each Mortgage requires that the Mortgagor
maintain insurance as described above or permits the Mortgagee to
require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails
to do so.
14. Except as provided below, (a) other than payments due but not yet 30
days or more delinquent, to the Seller's actual knowledge, based upon
due diligence customarily performed with the servicing of comparable
mortgage loans by prudent institutional lenders, there is no material
default, breach, violation or event of acceleration existing under the
related Mortgage or the related Mortgage Note, and to the Seller's
actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration, provided, however,
that this representation and warranty does not address or otherwise
cover any default, breach, violation or event of acceleration that
specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of paragraphs
(10) (15) (19) and (21) of this Schedule I or in any paragraph of
Schedule II, and (b) the Seller has not waived any material default,
breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the
terms of the related Mortgage or the related Mortgage Note and other
documents in the related Mortgage File no Person or party other than
the holder of such Mortgage Note may declare any event of default or
accelerate the related indebtedness under either of such Mortgage or
Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more
past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation
except as expressly described in such Mortgage.
18. Each Mortgage Loan is directly secured by a Mortgage on a commercial
property or a multifamily residential property, and either (a)
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 (b) 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 (i) as of the Testing Date, or
(ii) as of the Closing Date. For purposes of the
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previous sentence, (A) the fair market value of the referenced interest
in real property shall first be reduced by (1) the amount of any lien
on such interest in real property that is senior to the Mortgage Loan,
and (2) a proportionate amount of any lien on such interest in real
property that is on a parity with the Mortgage Loan, and (B) the
"Testing Date" shall be the date on which the referenced Mortgage Loan
was originated unless (1) 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 (2) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has
been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest
such "significant modification" occurred. The Mortgage Loan documents
with respect to each Defeasance Loan do not allow such Defeasance Loan
to be defeased prior to two years after the Startup Date.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no actual knowledge and has
received no notice of any material and adverse environmental condition
or circumstance affecting such Mortgaged Property that was not
disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term
is defined in the Standard Practice for Environmental Site Assessments:
Phase I Environmental Site Assessment Process Designation: E 1527-00,
as recommended by the American Society for Testing and Materials
(ASTM), with respect to the related Mortgaged Property and the same
have not been subsequently addressed in all material respects, then
either (i) an escrow greater than 100% of the amount identified as
necessary by the environmental consulting firm to address the REC is
held by the Seller for purposes of effecting same (and the borrower has
covenanted in the Mortgage Loan documents to perform such work), (ii)
the related borrower or other responsible party having financial
resources reasonably estimated to be adequate to address the REC is
required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as
have been required by the applicable governmental regulatory authority
or any environmental law or regulation, (iii) the borrower has provided
an environmental insurance policy, (iv) an operations and maintenance
plan has been or will be implemented or (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no
further investigation or remediation. All environmental assessments or
updates that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have
been delivered to or disclosed to the environmental insurance carrier
issuing such policy prior to the issuance of such policy.
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20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render
the rights and remedies of the holder thereof adequate for the
practical realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or
insolvency proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the AB
Mortgage Loans) and contains no equity participation by the lender or
shared appreciation feature and does not provide for any contingent or
additional interest in the form of participation in the cash flow of
the related Mortgaged Property or, other than the ARD Loans, provide
for negative amortization. The Seller holds no preferred equity
interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged
Property, each related Mortgage or loan agreement contains provisions
for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without complying with the requirements of the
Mortgage or loan agreement, (a) the related Mortgaged Property, or any
controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death of a
member, general partner or shareholder of the related Borrower and
transfers of less than a controlling interest in a mortgagor, or a
substitution or release of collateral within the parameters of
paragraph (26) below), or (b) the related Mortgaged Property is
encumbered in connection with subordinate financing by a lien or
security interest against the related Mortgaged Property, other than
any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Except as provided below, each related Mortgaged Property was inspected
by or on behalf of the related originator or an affiliate during the 12
month period prior to the related origination date.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any
manner which materially and adversely affects the value of the Mortgage
Loan or materially interferes with the security intended to be provided
by such Mortgage, and, except with respect to Mortgage Loans (a) which
permit defeasance by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of
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such Mortgaged Properties) U.S. Treasury obligations sufficient to pay
the Mortgage Loans (or portions thereof) in accordance with their
terms, (b) where a release of the portion of the Mortgaged Property was
contemplated at origination and such portion was not considered
material for purposes of underwriting the Mortgage Loan, (c) where
release is conditional upon the satisfaction of certain underwriting
and legal requirements and the payment of a release price that
represents adequate consideration for such Mortgaged Property or the
portion thereof that is being released, or (d) which permit the related
Mortgagor to substitute a replacement property in compliance with REMIC
Provisions, the terms of the related Mortgage do not provide for
release of any portion of the Mortgaged Property from the lien of the
Mortgage except in consideration of payment in full therefor.
27. Except as provided below, to the Seller's actual knowledge, based upon
a letter from governmental authorities, a legal opinion, an endorsement
to the related title policy, or based upon other due diligence
considered reasonable by prudent commercial conduit mortgage lenders in
the area where the applicable Mortgaged Property is located, as of the
date of origination of such Mortgage Loan and as of the Cut-Off Date,
there are no material violations of any applicable zoning ordinances,
building codes and land laws applicable to the Mortgaged Property or
the use and occupancy thereof which (a) are not insured by an ALTA
lender's title insurance policy (or a binding commitment therefor), or
its equivalent as adopted in the applicable jurisdiction, or a law and
ordinance insurance policy or (b) would have a material adverse effect
on the value, operation or net operating income of the Mortgaged
Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination
of each Mortgage Loan, none of the material improvements which were
included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building restriction
lines of such property (except Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's
use and operation of such Mortgaged Property (unless affirmatively
covered by title insurance) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material and adverse
extent (unless affirmatively covered by title insurance).
29. With respect to at least 95% of such Seller's Mortgage Loans (by
balance) having a Cut-Off Date Balance in excess of 1% of the Initial
Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or
Mortgaged Properties, as applicable, and assets incidental to its
ownership and operation of such Mortgaged Property, and to hold itself
out as being a legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's actual knowledge, no
I-8
funds have been received from any Person other than the Mortgagor, for
or on account of payments due on the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as
of the Cut-Off Date, there was no pending action, suit or proceeding,
or governmental investigation of which it has received notice, against
the Mortgagor or the related Mortgaged Property the adverse outcome of
which could reasonably be expected to materially and adversely affect
such Mortgagor's ability to pay principal, interest or any other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge,
as of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for complied as of the
date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that secures
a Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage Loan
as of the Closing Date required to be deposited with the Seller in
accordance with the Mortgage Loan documents have been so deposited, are
in the possession, or under the control, of the Seller or its agent and
there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans
by prudent commercial and multifamily mortgage lending institutions
with respect to the related geographic area and properties comparable
to the related Mortgaged Property, as of the date of origination of the
Mortgage Loan, the related Mortgagor, the related lessee, franchisor or
operator was in possession of all material licenses, permits and
authorizations then required for use of the related Mortgaged Property,
and, as of the Cut-Off Date, the Seller has no actual knowledge that
the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage
Loan have been in all respects legal and
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have met customary industry standards for servicing of commercial
mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related
Mortgaged Property.
40. Except as provided below, the Mortgage Loan documents for each Mortgage
Loan provide that each Mortgage Loan is non-recourse to the related
Mortgagor except that the related Mortgagor accepts responsibility for
fraud and/or other intentional material misrepresentation. Furthermore,
except as provided below, the Mortgage Loan documents for each Mortgage
Loan provide that the related Mortgagor shall be liable to the lender
for losses incurred due to the misapplication or misappropriation of
rents collected in advance or received by the related Mortgagor after
the occurrence of an event of default and not paid to the Mortgagee or
applied to the Mortgaged Property in the ordinary course of business,
misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage
and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the real
property.
42. With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two years after the Closing Date, (b) only with substitute
collateral constituting "government securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient
to make all scheduled payments under the Mortgage Note and (c) only to
facilitate the disposition of the Mortgaged Property and not as a part
of an arrangement to collateralize a REMIC offering with obligations
that are not real estate mortgages. In addition, if such Mortgage
contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that
the related Mortgagor must deliver (or otherwise, the Mortgage Loan
documents contain certain provisions pursuant to which the lender can
require) (i) an accountant's certification as to the adequacy of the
defeasance collateral to make payments under the related Mortgage Loan
for the remainder of its term, (ii) an Opinion of Counsel that the
defeasance complies with all
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applicable REMIC Provisions, and (iii) assurances from the Rating
Agencies that the defeasance will not result in the withdrawal,
downgrade or qualification of the ratings assigned to the Certificates.
Notwithstanding the foregoing, some of the Mortgage Loan documents may
not affirmatively contain all such requirements, but such requirements
are effectively present in such documents due to the general obligation
to comply with the REMIC Provisions and/or deliver a REMIC Opinion of
Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the
Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any AB Mortgage Loan, none
of the Mortgaged Properties are encumbered, and none of the Mortgage
Loan documents permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or
of equal priority with, or superior to, the lien of the related
Mortgage (other than Title Exceptions, taxes, assessments and contested
mechanics and materialmens liens that become payable after the after
the Cut-Off Date of the related Mortgage Loan).
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SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than 30 days after the Closing Date and such Ground
Lease permits the interest of the lessee thereunder to be encumbered by
the related Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent
is required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and any such action
without such consent is not binding on the mortgagee, its successors or
assigns, except termination or cancellation if (a) an event of default
occurs under the Ground Lease, (b) notice thereof is provided to the
mortgagee and (c) such default is curable by the mortgagee as provided
in the Ground Lease but remains uncured beyond the applicable cure
period.
4. To the actual knowledge of the Seller, at the Closing Date, such Ground
Lease is in full force and effect and other than payments due but not
yet 30 days or more delinquent, (a) there is no material default, and
(b) there is no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further
provides that no notice given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the
ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however,
to only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease) to cure any curable default under such
Ground Lease before the lessor thereunder may terminate such Ground
Lease.
II-1
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment or defeasance of
the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any 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).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Loan Number Loan Name Description of Exception
10 Mall at Town Park An unimproved portion at the rear of the related Mortgaged Property is
currently subject to condemnation proceedings in connection with the
widening of the public roadway behind the subject improvements, which
is not expected to materially or adversely affect the center.
III-1
Exhibit A
---------
Mortgage Loan Schedule
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
10 Mall at Towne Park 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx XX 00000
00 Xxxxxxxxx Xxxxx 00000-00000 Xxxxx Xxxx Xxxxx XX 00000
14 Two Montrose Metro 00000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
16 Renaissance Towers and Apartments 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
17 Westlinks Corporate Center 00000 Xxxxxxxx Xxxxx Xx Xxxx Xxxxx XX 00000
18 Top Food and Drug 000 00xx Xxxxxx XX Xxxxxxxx XX 00000
00 Xxxxxxx Xxxxxxx Xxxxxx 0000 X Xxxxxxxxx Xxx Xxxxxxx XX 00000
24 Village Park 0000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxxxxxxxx XX 00000
26 Annapolis City Office Park 000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
27 Two Corporate Plaza 0000 Xxx Xxxx Xxxxxxxxx Xxxxxxx XX 00000
00 Xxxxxx xxx xxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX 00000
30 Fair Oaks Office Building 00000 Xxx Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000
32 Fox Valley Executive Center 00 Xxxxxxxxx Xxxxx Xxxxxx XX 00000
00 Xxxxxxxx Xxxxxx 00 Xxxxxx Xxxxx Xxxxxxx XX 00000
36 Imperial Estates 0000 X Xxxxx Xxxx 0 Xxxx Xxxxxxxxxx XX 00000
37 White Oak Center 00000 Xxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000
38 Highland Xxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxx Xxxx XX 00000
41 Highland Manor 000 Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
00 Xxxxxxxx Xxxx 0000 Xxxxxx Xxxx Xxxx Xxxxxxx XX 00000
00 Xxxxx Xxxxxxx Building 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
59 Northern Berkshire Care Center 00 Xxxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
00 Xxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxx Xxxxxxxxx XX 00000
66 Courtyard by Marriott 0000 Xxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
75 Springhill Suites - Xxxxxxxxxx 0000 XxxxXxxxx Xxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxxx Xxx - Xxxxxxxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
80 Highland Arms 0000 Xxxxxxxxx Xxxx Xxxxxxx Xxxx XX 00000
82 Erie Essex Apartments 0000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
83 Walgreens - Ontario 0000 Xxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
86 Springhill Suites - Savannah 00000 Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
87 Fed Ex Distribution Center 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000
00 Xxxxxxxxx Xxxxxxx MHP 0000 X. Xxxxxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxxxxx Xxx - Xxxxxxxxxx 0000 Xxxxxxxxxx Xxx Xxxxxxxxxx XX 00000
94 Joppa Green II 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxxx XX 00000
95 Laguna Seca Office Building 00000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx XX 00000
97 0000 Xxxx Xxxx One 0000 Xxxx Xx. 0 Xxxxxx Xxx XX 00000
104 Irving Heights Apartments 000 X. Xxxxxx Xxxxxxx Xxxxxx XX 00000
000 Xxxxxxxxx Xxxx Xxxxxxxx 000 X. Xxxxxxx Xxx Xxxxx XX 00000
108 Joppa Green I 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxxx XX 00000
000 Xxxxx Xxxxxx MHP 000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
000 Xxxx Xxxxxx Xxxxx 0 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000
000 Xxxxxxx Xxxxxx at Xxxx Xxxx 0000 Xxxx Xxxxxxxx Xxxx Xxxx XX 00000
000 Xxxxx Xxxxxx Apartments 0000 Xxxx Xxxxxxxx Xxx Xxxxxx XX 00000
000 Xx. Xxxxx Xxxxxx Xxxx Xxxx 0000 X. Xxxx Xxxxxx Xxxxx Xxxxx XX 00000
127 Mackenzie - MacReal 0000 XxXxxxxx Xxxx Xxxxxx Xxxxx XX 00000
000 Xxxx Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
MORTGAGE
LOAN CUT-OFF DATE LOAN MONTHLY P&I PAYMENTS GRACE
NUMBER COUNTY BALANCE ($) ($) DAYS
-------------------------------------------------------------------------------------------------
10 Xxxxxx 18,235,469.25 120,587.56 0
13 San Diego 15,985,705.62 92,965.49 0
14 Montgomery 15,767,119.02 110,568.70 0
16 Lake 12,428,958.85 79,647.67 0
17 Xxx 12,390,017.76 75,223.47 0
18 Xxxxxx 12,016,208.61 84,365.94 5
22 Los Angeles 11,285,520.75 72,667.97 10
24 Broward 10,400,000.00 Xxxxxx (XX) 0
00 Xxxx Xxxxxxx 10,191,523.58 61,088.59 10
27 Xxxxxx 10,142,757.50 60,392.75 0
28 Riverside 9,990,929.20 57,723.58 0
30 Fairfax 9,971,083.88 57,987.22 0
32 Du Page 9,142,031.77 53,746.19 0
35 Dekalb 8,616,704.84 48,512.82 0
36 Broward 8,600,000.00 Varies (IO) 0
37 Montgomery 7,992,852.81 46,482.74 0
38 Xxxxxxx 7,804,486.74 43,939.96 0
41 Xxxxxxx 7,224,045.53 40,672.02 0
51 Dekalb 6,186,044.79 34,827.99 0
53 Montgomery 5,938,689.64 34,536.68 0
59 Berkshire 5,188,834.65 32,479.71 0
63 Baltimore 4,838,475.78 29,002.11 10
66 Polk 4,525,084.20 31,441.47 0
75 Montgomery 3,945,713.60 27,415.85 0
77 Xxxx 3,755,919.78 26,097.11 0
80 Xxxxxxx 3,536,595.38 19,911.35 0
82 Hennepin 3,491,893.43 23,632.25 0
00 Xxx Xxxxxxxxxx 3,490,880.82 21,209.82 10
86 Chatham 3,196,527.47 22,210.31 0
87 Xxxxxxxxx Xxxxxx 3,196,334.26 19,372.41 0
00 Xxxx 3,191,681.75 20,461.44 0
90 Madison 3,156,570.88 21,932.68 0
94 Baltimore 3,007,498.62 18,027.12 10
95 Monterey 2,995,411.75 18,588.74 0
97 Xxxxxx 2,970,210.32 18,066.80 0
104 Dallas 2,732,306.38 18,225.99 0
000 Xxxxx 2,645,722.17 16,075.98 0
000 Xxxxxxxxx 2,497,922.44 14,972.69 10
117 Polk 2,198,176.56 13,190.11 0
000 Xxxxxxxxx 2,098,345.36 12,848.22 10
121 Maricopa 1,996,890.75 12,314.34 0
123 Dallas 1,796,808.50 10,504.31 0
124 Santa Xxxxxxx 1,745,440.41 10,604.91 0
000 Xxxxxxxxx 1,498,753.47 8,983.62 10
128 Spokane 1,199,002.77 7,186.89 0
ORIGINAL
MORTGAGE TERM TO REMAINING TERM STATED ORIGINAL
LOAN MORTGAGE NUMBER UNIT OF MATURITY TO MATURITY OR MATURITY DATE AMORT TERM
NUMBER RATE (%) OF UNITS MEASURE OR ARD (MOS.) ARD (MOS.) OR ARD (MOS.)
-----------------------------------------------------------------------------------------------------------------------------
10 6.2500% 203,026 Sq. Ft. 120 118 11-Dec-2012 300
13 5.7100% 144,345 Sq. Ft. 120 119 11-Jan-2013 360
14 5.7100% 59,900 Sq. Ft. 120 119 11-Jan-2013 240
16 5.9000% 450 Units 120 117 11-Nov-2012 300
17 6.1100% 228,755 Sq. Ft. 120 119 11-Jan-2013 360
18 6.8500% 80,461 Sq. Ft. 120 114 1-Aug-2012 300
22 5.9800% 88,063 Sq. Ft. 60 59 1-Jan-2008 300
24 5.3500% 307 Pads 60 59 11-Jan-2008 NA
26 5.9900% 73,472 Sq. Ft. 120 119 1-Jan-2013 360
27 5.9200% 161,331 Sq. Ft. 60 58 11-Dec-2007 360
28 5.6500% 107,065 Sq. Ft. 120 119 11-Jan-2013 360
30 5.7100% 78,317 Sq. Ft. 120 119 11-Jan-2013 360
32 5.8100% 107,087 Sq. Ft. 120 119 11-Jan-2013 360
35 5.4150% 210 Units 120 119 11-Jan-2013 360
36 5.3500% 264 Pads 60 59 11-Jan-2008 NA
37 5.7100% 80,110 Sq. Ft. 120 119 11-Jan-2013 360
38 5.4150% 224 Units 120 119 11-Jan-2013 360
41 5.4150% 230 Units 120 119 11-Jan-2013 360
51 5.4150% 212 Units 120 119 11-Jan-2013 360
53 5.7100% 50,578 Sq. Ft. 120 119 11-Jan-2013 360
59 6.0100% 47,248 Sq. Ft. 120 118 11-Dec-2012 324
63 5.9900% 39,630 Sq. Ft. 120 119 1-Jan-2013 360
66 6.8000% 78 Rooms 120 119 11-Jan-2013 300
75 6.8000% 79 Rooms 120 119 11-Jan-2013 300
77 6.8000% 79 Rooms 120 119 11-Jan-2013 300
80 5.4150% 108 Units 120 119 11-Jan-2013 360
82 6.5000% 122 Units 120 118 11-Dec-2012 300
83 6.1000% 15,120 Sq. Ft. 120 117 1-Nov-2012 360
86 6.8000% 79 Rooms 120 119 11-Jan-2013 300
87 5.7000% 70,707 Sq. Ft. 84 83 11-Jan-2010 324
88 5.9200% 158 Pads 120 118 11-Dec-2012 300
90 6.8000% 79 Rooms 120 119 11-Jan-2013 300
94 5.9900% 33,177 Sq. Ft. 120 119 1-Jan-2013 360
95 6.3100% 18,036 Sq. Ft. 120 118 11-Dec-2012 360
97 6.1200% 54,777 Sq. Ft. 120 118 11-Dec-2012 360
104 6.3000% 103 Units 120 115 11-Sep-2012 300
106 6.1100% 118,203 Sq. Ft. 120 118 11-Dec-2012 360
108 5.9900% 28,564 Sq. Ft. 120 119 1-Jan-2013 360
117 6.0000% 165 Pads 120 119 11-Jan-2013 360
119 6.1900% 25,366 Sq. Ft. 120 119 1-Jan-2013 360
121 6.2500% 10,128 Sq. Ft. 120 118 11-Dec-2012 360
123 5.7500% 82 Units 120 118 11-Dec-2012 360
124 6.1000% 80 Pads 120 117 11-Nov-2012 360
127 5.9900% 15,385 Sq. Ft. 120 119 1-Jan-2013 360
128 5.9900% 141 Pads 120 119 11-Jan-2013 360
MORTGAGE REMAINING MASTER ANTICIPATED
LOAN AMORT TERM GROUND SERVICING ARD REPAYMENT
NUMBER (MOS.) LEASE (Y/N) FEE RATE LOANS DATE
------------------------------------------------------------------------------------------------------------------
10 298 N 0.09000% N
00 000 X 0.04000% N
00 000 X 0.04000% Y 11-Jan-2013
00 000 X 0.04000% N
00 000 X 0.09000% N
00 000 X 0.04000% N
22 299 N 0.09000% N
24 NA N 0.04000% N
26 359 N 0.09000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% Y 11-Jan-2013
00 000 X 0.04000% N
35 359 N 0.04000% N
36 NA N 0.04000% N
37 359 N 0.04000% Y 11-Jan-2013
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% Y 11-Jan-2013
59 322 Y 0.04000% N
00 000 X 0.09000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.09000% N
00 000 X 0.04000% N
00 000 X 0.11000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
00 000 X 0.09000% N
00 000 X 0.04000% N
00 000 X 0.04000% N
000 000 X 0.04000% N
000 000 X 0.04000% N
000 000 X 0.09000% N
000 000 X 0.04000% N
000 000 X 0.09000% N
000 000 X 0.11000% N
000 000 X 0.04000% N
000 000 X 0.04000% N
000 000 X 0.09000% N
128 359 N 0.04000% N
MORTGAGE
LOAN LOAN ENVIRONMENTAL
NUMBER ADDITIONAL INTEREST RATE ORIGINATOR INSURANCE
--------------------------------------------------------------------------------------------------------
10 NCCI
13 NCCI
14 0.0771 NCCI
16 NCCI
17 NCCI
18 NCCI
22 NCCI
24 NCCI
26 NCCI
27 NCCI
28 NCCI Y
30 0.0771 NCCI
32 NCCI
35 NCCI
36 NCCI
37 0.0771 NCCI
38 NCCI
41 NCCI
51 NCCI
53 0.0771 NCCI
59 NCCI
63 NCCI
66 NCCI
75 NCCI
77 NCCI
80 NCCI
82 NCCI Y
83 NCCI
86 NCCI
87 NCCI
88 NCCI
90 NCCI
94 NCCI
95 NCCI
97 NCCI
104 NCCI
106 NCCI
108 NCCI
117 NCCI
119 NCCI
121 NCCI
123 NCCI
124 NCCI
127 NCCI
128 NCCI
CROSS
COLLATERALIZED
MORTGAGE AND CROSS INTEREST
LOAN DEFAULTED LOAN DEFEASANCE SECURED ACCRUAL
NUMBER FLAG LOAN BY LC METHOD LOCKBOX
-------------------------------------------------------------------------------------------------------------------
10 Y Actual/360 Springing
13 Y Actual/360
14 Y Actual/360 Day 1
16 Y Actual/360
17 Y Actual/360
18 Y Actual/360 Springing
22 Y Actual/360
24 Imperial and Village MHP's Y Actual/360
26 Y Actual/360
27 Y Actual/360 Springing
28 Y Actual/360
30 Y Actual/360 Springing
32 Y Actual/360 Springing
35 Y Actual/360
36 Imperial and Village MHP's Y Actual/360
37 Y Actual/360 Springing
38 Y Actual/360
41 Y Actual/360
51 Y Actual/360
53 Y Actual/360 Springing
59 Y Actual/360
63 Y Actual/360
66 Xxxxxxxx Portfolio Y Actual/360 Springing
75 Xxxxxxxx Portfolio Y Actual/360 Springing
77 Xxxxxxxx Portfolio Y Actual/360 Springing
80 Y Actual/360
82 Y Actual/360
83 Y Actual/360 Springing
86 Xxxxxxxx Portfolio Y Actual/360 Springing
87 Y Actual/360 Day 1
88 Y Actual/360
90 Xxxxxxxx Portfolio Y Actual/360 Springing
94 Y Actual/360
95 Y Actual/360
97 Y Actual/360 Springing
104 Y Actual/360
106 Y Actual/360 Springing
108 Y Actual/360
117 Y Actual/360
119 Y Actual/360
121 Y Actual/360
123 N Actual/360
124 Y Actual/360
127 Y Actual/360
128 Y Actual/360
