MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of December 1,
1997 (the "Agreement"), is between Xxxxxxx Xxxxx Mortgage Investors, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx Mortgage Capital, Inc.
(the "Mortgage Loan Seller"). The Mortgage Loan Seller agrees to sell, and the
Company agrees to purchase, the mortgage loans (the "Mortgage Loans") described
in, and set forth in, the Mortgage Loan Schedule attached as Exhibit A to this
Agreement (the "Mortgage Loan Schedule"). The Company intends to deposit the
Mortgage Loans and other assets into a trust (the "Trust") and cause the
creation of a series of certificates to be known as Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1997-C2 (the
"Certificates"), evidencing beneficial ownership interests in the Mortgage Loans
and other assets (including, without limitation, other mortgage loans), under a
Pooling and Servicing Agreement, to be dated as of December 1, 1997 (the
"Pooling and Servicing Agreement"), among the Company, as depositor, GE Capital
Loan Services, Inc., as master servicer (the "Servicer"), CRIIMI MAE Services
Limited Partnership, as special servicer (the "Special Servicer"), and State
Street Bank and Trust Company, as trustee (the "Trustee"). Capitalized terms
used but not otherwise defined herein shall have the respective meanings given
to them in the Pooling and Servicing Agreement without giving effect to any
amendment thereto unless the Mortgage Loan Seller has given its consent to such
amendment in writing and signed by a duly authorized officer of the Mortgage
Loan Seller.
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall consist of a cash amount equal to (i) 100%
of the outstanding principal balance of the Mortgage Loans as of the Cut-Off
Date plus (ii) interest accrued on the Mortgage Loans at the related Mortgage
Rate. The Purchase Price amount shall be payable by the Company to the Mortgage
Loan Seller on December 23, 1997 or such other date as shall be mutually
acceptable to the parties hereto (the "Closing Date") in immediately available
funds. The closing for the purchase and sale of the Mortgage Loans shall take
place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York time), on the Closing Date.
On the Closing Date, the Mortgage Loan Seller shall sell, transfer, assign,
set over and convey to the Company, without recourse, and the Company shall
purchase, all the right, title and interest of the Mortgage Loan Seller in and
to the Mortgage Loans, including all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies. The Company
hereby directs the Mortgage Loan Seller, and the Mortgage Loan Seller hereby
agrees, to deliver to the Trustee all documents, instruments and agreements
required to be delivered by the Company to the Trustee under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01 and such other documents, instruments and agreements as the Company
or the Trustee shall reasonably request. The Mortgage Loan Schedule may be
amended to reflect the actual Mortgage Loans.
2. Representations and Warranties. (a) The Mortgage Loan Seller hereby
represents and warrants to the Company as of the date hereof and as of Closing
Date that:
(i) The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its assets and
conduct its business, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the value of the Mortgage Loans and the ability of the Mortgage
Loan Seller to perform its obligations hereunder, and the Mortgage Loan
Seller has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the corporate
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign, transfer, set over and convey the
Mortgage Loans in accordance with this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by the Mortgage Loan Seller and assuming its due authorization, execution
and delivery by the Company, will constitute a legal, valid and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law), or by public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Mortgage
Loan Seller and the performance of its obligations hereunder (1) will not
conflict with any provision of any law or regulation to which the Mortgage
Loan Seller is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
any of the Mortgage Loan Seller's organizational documents or any agreement
or instrument to which the Mortgage Loan Seller is a party or by which it
is bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Seller's assets or property, in each case which would materially and
adversely affect the ability of the Mortgage Loan Seller to carry out the
transactions
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contemplated by this Agreement; and (2) does not require the consent of any
third party or such consent has been obtained.
(iv) There is no action, suit, proceeding or investigation pending or,
to the knowledge of the Mortgage Loan Seller, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which, in the Mortgage Loan Seller's good faith
and reasonable judgment, would materially and adversely affect the validity
of the Mortgage Loans or the ability of the Mortgage Loan Seller to enter
into, and carry out the transactions contemplated by, this Agreement;
(v) The Mortgage Loan Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default might have
consequences that, in the Mortgage Loan Seller's good faith and reasonable
judgment, would materially and adversely affect the condition (financial or
other) or operations of the Mortgage Loan Seller or its properties or might
have consequences that would materially and adversely affect its
performance hereunder;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage
Loan Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those which have been obtained
by the Mortgage Loan Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans by
the Mortgage Loan Seller to the Company is not subject to bulk transfer
laws or any similar statutory provisions in effect in any applicable
jurisdiction; and
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller will report the
transfer of the Mortgage Loans to the Company as a sale of the Mortgage
Loans to the Company. The consideration received by the Mortgage Loan
Seller upon the sale of the Mortgage Loans to the Company will constitute
reasonably equivalent value and fair consideration for the Mortgage Loans.
The Mortgage Loan Seller will be solvent at all relevant times prior to,
and will not be rendered insolvent by, the sale of the Mortgage Loans to
the Company. The Mortgage Loan Seller is not selling the Mortgage Loans to
the Company with any intent to hinder, delay or defraud any of the
creditors of the Mortgage Loan Seller.
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(a) The Mortgage Loan Seller hereby represents and warrants with respect to
each Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) Immediately prior to the sale, transfer and assignment of the
Mortgage Loans to the Company, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan;
(ii) The Mortgage Loan Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan, and none of the Mortgage Note,
the Mortgage or any other related loan document prohibits such transfer;
(iii) Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed in connection with such Mortgage Loan is,
a valid and binding obligation of the related Mortgagor, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium 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) and any lost note affidavit included in the
Mortgage File in lieu of a Mortgage Note does not impair the ability of the
holder thereof to enforce the terms of such Mortgage Note;
(iv) Each related Assignment of Leases, or, if none, the assignment of
leases and rents contained in the related Mortgage creates a valid,
collateral or first priority assignment of, or a valid first priority
security interest in, the right to receive all payments due under the
related leases, and no other person owns any interest therein superior to
or of equal priority with the interest created under such assignment;
(v) Each related assignment of Mortgage from the Mortgage Loan Seller
to the Trustee and any related assignment of Assignment of Leases, if any,
and assignment of any other agreement executed in connection with such
Mortgage Loan, from the Mortgage Loan Seller to the Trustee constitutes the
legal, valid and binding assignment from the Mortgage Loan Seller to the
Trustee, except as such enforcement may be limited by bankruptcy,
insolvency, 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);
(vi) Since origination, such Mortgage Loan has not been modified,
altered, satisfied, canceled, subordinated or rescinded, except,
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in each of the foregoing instances, by written instruments that are a part
of the related Mortgage File, recorded in the applicable public recording
office if necessary to maintain the priority of the lien of the related
Mortgage and security agreements and delivered to the Company, and no
material portion of the related Mortgaged Property has been released from
the lien of the related Mortgage, in each case, 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 those Mortgage Loans listed on
Schedule 1 attached hereto which permit defeasance, the terms of the
related Mortgage do not provide for release of any portion of the Mortgaged
Property from the lien of the Mortgage in any manner which materially and
adversely affects the security provided by the Mortgaged Property;
(vii) Each related Mortgage is a valid first lien on the related
Mortgaged Property (subject to the matters described in clause (viii)
below), and such Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the
related Mortgage, except those which are insured against by a lender's
title insurance policy (as described in clause (viii) below);
(viii) The lien of each related Mortgage as a first priority lien in
the outstanding principal amount of such Mortgage Loan (as set forth on the
Mortgage Loan Schedule) after all advances of principal 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
Mortgage Loan Seller, its successors and assigns, subject only to (a) the
lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of public
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability to
pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property and (c) the exceptions (general
and specific) set forth in such policy, none of which, individually or in
the aggregate, materially interferes with the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations when they become due or materially and adversely affects the
value of the Mortgaged Property; the original holder of the Mortgage,
and/or its successor or assigns is the sole named insured of such policy;
such policy is assignable to the Company and the Trustee without the
consent of or any notification to the insurer, and is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; no claims have been made
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under such policy and the Mortgage Loan Seller has not done anything, by
act or omission, and the Mortgage Loan Seller has no knowledge of any
matter, which would impair or diminish the coverage of such policy;
(ix) The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and the Mortgage
Loan Seller covenants that it will not make any future advances under the
Mortgage Loan to the related Mortgagor;
(x) There is no proceeding pending, or to our knowledge, threatened,
for the total or partial condemnation of all or any material portion of
such Mortgaged Property, and, to the Mortgage Loan Seller's knowledge, each
related Mortgaged Property is free and clear of any material damage that
would affect materially and adversely the value of such Mortgaged Property
as security for the Mortgage Loan.
(xi) The related Mortgagor has represented to the Mortgagee that, as
of the date of origination of such Mortgage Loan, and, to the Mortgage Loan
Seller's knowledge, such Mortgagor and the lessee and/or operator of the
related Mortgaged Property was in possession of all material licenses,
permits and other authorizations necessary and required by all applicable
laws for the conduct of its business and all such licenses, permits and
authorizations were valid and in full force and effect;
(xii) Each Mortgage Loan does not have a shared appreciation feature,
other contingent interest feature or, except with respect to those Mortgage
Loans listed on Schedule 2 attached hereto (the "ARD Loans") which provide
for hyper-amortization, a negative amortization feature;
(xiii) Each Mortgage Loan is a whole loan and no other party holds a
participation interest in the Mortgage Loan;
(xiv) The Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of each Mortgage Loan complied as of the
date of origination with, or such Mortgage Loan is exempt from, applicable
state or federal laws, regulations and other requirements pertaining to
usury; any and all other requirements of any federal, state or local laws,
including, without limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws, applicable to each
Mortgage Loan have been complied with as of the date of origination of such
Mortgage Loan;
(xv) All taxes and governmental assessments which would be a lien on
the Property and that prior to the Cut-off Date became due and
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owing 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;
(xvi) All escrow deposits and payments required pursuant to the
Mortgage Loan are in the possession, or under the control, of the Mortgage
Loan Seller or its agent and all amounts required to be deposited by the
Borrower under the Loan Documents as of the date hereof have been deposited
and all such escrows and deposits have been conveyed by the Mortgage Loan
Seller to the Company and identified as such with appropriate detail;
(xvii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy in an amount not less than the lesser of
(A) the outstanding principal balance of the Mortgage Loan and (B) the
replacement cost, and in all events the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged
Property; each related Mortgaged Property is also covered by business
interruption insurance (or loss of rents insurance) and comprehensive
general liability insurance in amounts generally required by institutional
lenders for similar properties; all premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies require prior notice to the insured and to the Mortgagee of
termination or cancellation, and no such notice has been received; each
related Mortgage or loan agreement obligates the related Mortgagor to
maintain a fire and extended perils insurance and, at such Mortgagor's
failure to do so, authorizes the Mortgagee to maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor from
such Mortgagor;
(xviii) Each Mortgage provides that any insurance proceeds in respect
of a casualty, other than business interruption/rental income insurance,
and any condemnation awards, will be applied either to the repair or
restoration of the Mortgaged Property or to the repayment of the
outstanding principal balance of the Mortgage Loan;
(xix) To the Mortgage Loan Seller's knowledge, there is no material
default, breach, violation or event of acceleration existing under the
related Mortgage or the related Mortgage Note and no event (other than
payments due but not yet delinquent) which, with the passage of time or
with notice and the expiration of any grace or cure period, would and does
constitute a material default, breach, violation or event of acceleration;
(xx) No Monthly Payment on such Mortgage Loan has been more than 30
days delinquent from the later of one year prior to the Cut-off
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Date, the date of origination of such Mortgage Loan or, if applicable, the
date of acquisition by the Mortgage Loan Seller of such Mortgage Loan,
through the Cut-off Date;
(xxi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the 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 other law
affecting the right of creditors generally and the application of
principles of equity, and there is no exemption available to the Mortgagor
which would interfere with such right to foreclose;
(xxii) A Phase I Environmental Site Assessment was performed with
respect to the related Mortgaged Property. Such Phase I Environmental Site
Assessment was performed within twelve (12) months prior to the respective
dates of origination of the related Mortgage Loan. A report of such Phase I
Environmental Site Assessment has been delivered to the Company, and the
Mortgage Loan Seller (or its affiliate that originated the Mortgage Loan),
having made no independent inquiry other than reviewing such report, has no
knowledge of any material and adverse environmental condition or
circumstance affecting the related Mortgaged Property that was not
disclosed in such report. To the extent any such condition or circumstance
was disclosed, either (a) there has been escrowed an amount of money
considered sufficient by the Mortgage Loan Seller, based upon the related
environmental reports, to cure and remedy such condition or circumstance as
recommended in the Phase I or, where applicable, Phase II Environmental
Site Assessment or (b) an operating and maintenance program has been
required of Mortgagor or (c) such condition has been cured or remedied. The
Mortgage Loan Seller has received no notice of any other such condition or
circumstance. In each Mortgage, the related Mortgagor represented and
warranted that it will not use or cause or permit to exist on the related
Mortgaged Property any hazardous materials in any manner that violates
federal, state or local laws, ordinances, regulations, orders or directives
relating to hazardous materials. In each Mortgage, the Mortgagor
represented and warranted that no hazardous materials exist on the related
Mortgaged Property in any manner that violates federal, state or local
laws, ordinances, regulations, orders or directives relating to hazardous
materials; provided, however, that in certain instances this representation
is limited to the best of Mortgagor's knowledge. The Mortgage Loan
generally requires (subject to exceptions which would not be viewed as
commercially unreasonable by a prudent institutional lender) that the
Mortgagor will defend and hold the holder of the Mortgage and its
successors and/or assigns harmless from and against
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any and all losses, liabilities, damages, injuries, penalties, fines,
expenses, and claims of any kind whatsoever (including attorney's fees and
costs) paid, incurred, or suffered by, or asserted against, any such party
resulting from a breach of any representation, warranty or covenant
relating to environmental matters given by the Mortgagor under the related
Mortgage except for those resulting from gross negligence or willful
misconduct by the holder of the Mortgage or those which are initially
placed on, in or under the Mortgaged Property after foreclosure or other
taking of title to the Mortgaged Property by the holder of the Mortgage;
(xxiii) 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, as applicable, the related Mortgaged Property, or any
controlling interest therein, is directly or indirectly transferred or
sold, or encumbered in connection with subordinate financing (other than
any existing subordinate debt) and each related Mortgage or loan agreement
prohibits the pledge or encumbrance of the Mortgaged Property without the
consent of the holder of the Mortgage Loan;
(xxiv) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"). For this purpose, Section 860G(a)(3) of the Code
shall be applied without regard to the rule contained in Treasury
Regulations Section 1.860G-2(f)(2) which treats a defective mortgage loan
as a "qualified mortgage" under certain circumstances. Accordingly, the
Mortgage Loan Seller represents and warrants that each Mortgage Loan is
directly secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property and such interest in real property was the sole
security for such Mortgage Loan as of the Testing Date (as defined below),
or (2) the fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount of the
Mortgage Loan (a) as of the Testing Date, or (b) as of the Closing Date.
For purposes of the previous sentence, (1) the fair market value of the
referenced interest in real property shall first be reduced by (a) the
amount of any lien on such interest in real property that is senior to the
Mortgage Loan, and (b) a proportionate amount of any lien on such interest
in real property that is on a parity with the Mortgage Loan, and (2) the
Testing Date shall be the date on which the referenced Mortgage Loan was
originated unless (a) such Mortgage Loan was modified after
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the date of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant modification"
did not occur at a time when such Mortgage Loan was in default or when
default with respect to such Mortgage Loan was reasonably foreseeable.
However, if the referenced Mortgage Loan has been subjected to a
"significant modification" after the date of its origination and at a time
when such Mortgage Loan was not in default or when default with respect to
such Mortgage Loan was not reasonably foreseeable, the Testing Date shall
be the date upon which the latest such "significant modification" occurred;
(xxv) As of the Cut-off Date the Mortgage Loan Schedule is complete
and accurate in all material respects;
(xxvi) The Mortgage Loan provides that the Mortgagor is required to
provide to the Mortgagee at least annually an operating statement and such
other information as is reasonably requested by the Mortgagee;
(xxvii) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulations Section
1.860G-1(b)(2);
(xxviii) The Mortgage File contains an appraisal of the related
Mortgaged Property which appraisal is signed by a qualified appraiser, who,
to the Mortgage Loan Seller's knowledge, had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was originated;
(xxix) 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 and except for
immaterial encroachment or where the same is covered by a title insurance
endorsement), and no improvements on adjoining properties materially
encroach upon such Mortgaged Property, or the requisite title insurance has
been obtained with respect to the foregoing;
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(xxx) To the Mortgage Loan Seller's knowledge, based on the type of
due diligence customarily provided by prudent institutional commercial and
multifamily mortgage lenders, as of the date of origination of such
Mortgage Loan, and as of the Cut-off Date, each Mortgaged Property was in
material compliance with all applicable laws, zoning ordinances (including
legal non-conforming uses), rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged Property or,
if such Mortgaged Property is not in compliance with the representations
made in this clause (xxx), such non-compliance does not materially and
adversely affect the value or operation of the Mortgaged Property;
(xxxi) With respect to the Mortgage Loans which as of the Cut-off Date
have a principal balance of at least $15 million, the related Mortgagor is
an entity which has represented and covenanted in connection with the
origination of the Mortgage Loan, or whose organizational documents
provide, that so long as the Mortgage Loan is outstanding it will be a
single-purpose entity. (For this purpose, "single-purpose entity" shall
mean a person, other than an individual, which does not engage in any
business unrelated to the related Mortgaged Property (which may include
multiple Mortgaged Properties owned by the same Borrower and securing only
Mortgage Loans conveyed hereunder as listed on Exhibit D and its (or their)
financing, does not have any material assets other than those related to
its interest in such Mortgaged Property (or Mortgaged Properties) or its
(or their) financing, or any indebtedness other than as permitted by the
related Mortgage or the other documents in the Mortgage Loan File, has its
own books and records separate and apart from any other person, and holds
itself out as being a legal entity, separate and apart from any other
person);
(xxxii) The Mortgage Loan complied, in all material respects, with all
of the terms, conditions and requirements of the Mortgage Loan Seller's
underwriting standards in effect at the time of the origination or
acquisition of such Mortgage Loan;
(xxxiii) Except as set forth on Schedule 1, to the Mortgage Loan
Seller's knowledge, no Mortgagor is a debtor in any state or federal
bankruptcy or insolvency proceeding;
(xxxiv) To the best of Mortgage Loan Seller's knowledge, as of the
Closing Date, there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to the Mortgage Loan (including the
defense of usury), nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any rights thereunder,
render the Mortgage Note or the Mortgage unenforceable,
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in whole or in part (excluding provisions relating to default interest,
yield maintenance charges or prepayment premiums), or subject to any right
of rescission, offset, abatement, diminution, valid defense or counterclaim
(including the defense of usury or the violation of any applicable
disclosure or consumer credit laws), except in any such case as enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and no such right of
rescission, offset, abatement, diminution, defense or counterclaim has been
asserted with respect thereto;
(xxxv) In the case of any Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the deed of
trust or has been substituted in accordance with applicable law, and no
fees or expenses are, or will become, payable to the trustee under the deed
of trust, except in connection with a trustee's sale after default by the
Mortgagor or in connection with the release of the Mortgaged Property or
related security for the Mortgage Loan following the payment of the
Mortgage Loan in full;
(xxxvi) 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;
(xxxvii) If the Mortgaged Property is subject to any leases, the
Mortgagor is the owner and holder of the landlord's interest under any
leases and the related Mortgage or Assignment of Leases provides for the
appointment of a receiver for rents or allows the Mortgagee to enter into
possession to collect rent or provides for rents to be paid directly to
Mortgagee in the event of a default;
(xxxviii) The Mortgage Note is not secured by any collateral that is
not being transferred hereunder;
(xxxix) Each Mortgage Loan, if any, that is cross-collateralized is
cross-collateralized only with one or more other Mortgage Loans being
transferred hereunder;
(xl) The origination (or acquisition, as the case may be), servicing
and collection practices used with respect to the Mortgage Loan by the
Mortgage Loan Seller and, to the Mortgage Loan Seller's knowledge, by any
prior holder of the Mortgage Loan, have been in all respects legal, proper
and prudent and have met customary industry standards;
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(xli) No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Mortgage Loan Seller to the
Mortgagor and, to the Mortgage Loan Seller's knowledge, no funds have been
received from any person other than the Mortgagor, for or on account of
payments due on the Mortgage Note or the Mortgage;
(xlii) UCC Financing Statements have been filed and/or recorded in all
places necessary to perfect a valid security interest in all material
furniture, fixtures and equipment owned by a Mortgagor and located on each
Mortgaged Property and for which perfection is accomplished by the filing
of a UCC financing statement, and the mortgages, security agreements,
chattel mortgages or equivalent documents related to and delivered in
connection with the related Mortgage Loans establish and create a valid and
enforceable first lien and first priority security interest on such
material furniture, fixtures and equipment except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally
or by the application of the rules of equity;
(xliii) Except with respect to the Mortgage Loans identified on
Schedule 1 as being subject to secured subordinate debt (the "Subordinate
Debt Mortgage Loans"), as of the date of the Prospectus, to the Mortgage
Loan Seller's knowledge, the Mortgagor has no indebtedness for borrowed
money secured by the Mortgaged Property other than the Mortgage Loan. With
respect to the Subordinate Debt Mortgage Loans, the creditor (the
"Subordinate Lender") under such secured indebtedness for borrowed money
("Other Debt") of the Mortgagor has entered into a subordination agreement
with the Mortgage Loan Seller pursuant to which (A) the Subordinate Lender
has agreed to fully subordinate the Other Debt to the Mortgage Loan
(collectively, the "Senior Debt"), (B) the Subordinate Lender has agreed
not to declare a default or exercise any remedies with respect to the Other
Debt until the Senior Debt has been paid in full, and (C) such
subordination agreement is assignable to the Company and its successors and
assigns and is being assigned hereunder and is part of the Mortgage File;
(xliv) Based on information obtained from the related Mortgagor at the
time of origination, a list of borrowers or groups of affiliated borrowers
with multiple Mortgage Loans is attached hereto as Exhibit D and, as of the
Cut-off Date, the aggregate principal amount of any Mortgage Loan or group
of Mortgage Loans made to one borrower or group of affiliated borrowers
does not exceed $33,927,602;
(xlv) No Mortgage Loan has an interest rate lower than 6.97% per
annum; and
-13-
(xlvi) Each Mortgage Loan is nonrecourse except for certain
circumstances including fraud, misappropriation, misrepresentation and
waste.
3. Notice of Breach; Cure and Repurchase.
(a) Pursuant to the Pooling and Servicing Agreement, the Mortgage Loan
Seller and the Company shall be given notice of any Breach or Document Defect
that materially and adversely affects the value of such Mortgage Loan or the
interests of the holders of the Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage Loan Seller
shall, not later than 90 days from the Mortgage Loan Seller's receipt of notice
of such Breach or Document Defect, if such Breach or Document Defect shall
materially and adversely affect the value of such Mortgage Loan or the interests
of the holders of the Certificates therein, cure such Document Defect or Breach,
as the case may be, in all material respects or, if such Document Defect or
Breach (other than omissions solely due to a document not having been returned
by the related recording office) cannot be cured within the periods hereinafter
set forth, repurchase the affected Mortgage Loan at the applicable Repurchase
Price (as defined below); provided, however, that if such Document Defect or
Breach is capable of being cured but not within such 90-day period, such
Document Defect or Breach does not relate to any Mortgage Loan not being treated
as a "qualified mortgage" within the meaning of the REMIC Provisions, and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Document Defect or Breach within such 90-day period, the Mortgage Loan
Seller shall have an additional 90 days to complete such cure (or failing such
cure, to complete such repurchase); provided, further, that with respect to such
additional 90-day period the Mortgage Loan Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Mortgage Loan Seller is pursuing in connection with the
cure thereof and stating that the Mortgage Loan Seller anticipates that such
Document Defect or Breach will be cured within the additional 90-day period. If
the affected Mortgage Loan is to be repurchased, Mortgage Loan Seller shall
remit the Repurchase Price in immediately available funds to the Trustee. The
delivery of a binding commitment to issue a policy of lender's title insurance
in lieu of the delivery of the actual policy of lender's title insurance shall
not be considered a Document Defect with respect to any Mortgage File.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan to be
repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement without giving effect to any amendment
thereto unless the Mortgage Loan Seller has given its consent to such amendment
in writing and signed by a duly authorized officer of the Mortgage Loan Seller.
-14-
(c) Upon any repurchase of a Mortgage Loan contemplated by Section 3(b)
above, the Trustee, the Servicer and the Special Servicer shall each tender to
the Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller.
(d) This Section 3 of this Agreement provides the sole and exclusive remedy
available to the Company, the Trustee, the Certificateholders, or the Trustee on
behalf of the Certificateholders or any other party, respecting any Document
Defect or any Breach.
(e) Subject to the terms of this Agreement, the Mortgage Loan Seller hereby
acknowledges the assignment by the Company to the Trustee, as trustee under the
Pooling and Servicing Agreement, for the benefit of the Certificateholders, of
the representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to repurchase a Mortgage Loan pursuant to this Section. The
Trustee or its designee may enforce such obligations as provided in Section 8
hereof.
4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the Mortgage Loan Seller,
as of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
ability of the Company to perform its obligations hereunder, and the
Company has taken all necessary action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all the transactions
contemplated hereby;
(ii) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law);
-15-
(iii) The execution and delivery of this Agreement by the Company and
the performance of its obligations hereunder will not conflict with any
provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of
the terms, conditions or provisions of any of the Company's organizational
documents or any agreement or instrument to which the Company is a party or
by which it is bound, or any law, rule, regulation, judgment, writ,
injunction, order or decree applicable to the Company, or result in the
creation or imposition of any lien on any of the Company's assets or
property, in each case which would materially and adversely affect the
ability of the Company to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Company, threatened against the Company in any
court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement
or any action taken in connection with the obligations of the Company
contemplated herein, or which would be likely to impair materially the
ability of the Company to perform under the terms of this Agreement;
(v) The Company is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Company or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Company; and
(vii) Under GAAP and for federal income tax purposes, the Company will
report the transfer of the Mortgage Loans by the Mortgage Loan Seller to
the Company as a sale of the Mortgage Loans to the Company.
5. Company's Conditions to Closing.
The obligations of the Company under this Agreement shall be subject to the
satisfaction, on the Closing Date, or such other date specified herein, of the
following conditions:
-16-
(a) The obligations of the Mortgage Loan Seller required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct in all material respects, and no event shall have occurred which, with
notice or the passage of time, or both, would constitute a material default
under this Agreement.
(b) The Company or its designee shall have received all of the following
closing documents, in such forms as are agreed upon and acceptable to the
Company and in form and substance satisfactory to the Company, the Underwriters
and their respective counsel, duly executed by all signatories other than the
Company as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage Files shall be delivered to and held by the Trustee on
behalf of the Company;
(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller dated as
of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Mortgage Loan Seller's counsel, subject to
customary exceptions and carve-outs, in form and substance reasonably
acceptable to the Company and its counsel and the Rating Agencies, which
states in substance the opinions set forth on Exhibit C hereto, and, in
addition, an opinion delivered on the date of the Prospectus as to the
matters set forth in the last paragraph of Exhibit C hereto; and
(v) such other documents, certificates and opinions as the Company may
reasonably request to effectuate the transactions contemplated by this
Agreement.
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Company in order
for the Company to perform any of its obligations or satisfy any of
theconditions on its part to be performed or satisfied pursuant to the
Underwriting Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Indemnification and Contribution.
(a) The Mortgage Loan Seller shall indemnify and hold harmless the Company,
the Underwriter, their respective officers and directors, and eachperson, if
any, who controls the Company or the Underwriter within the meaning of either
Section 15 of the
-17-
Securities Act of 1933, as amended (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may f become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact relating to the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Mortgage Loan Seller
contained in (A) the Prospectus Supplement and the Memorandum under the headings
"Summary of the Prospectus Supplement-The Mortgage Pool" or "Summary of the
Memorandum-The Mortgage Pool", as applicable, "Risk Factors-The Mortgage Loans"
and "Description of the Mortgage Pool" and on Annex A to the Prospectus
Supplement, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing or (B) any
items similar to Computational Materials and ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, 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, in the case of (i) and (ii), only if and to the extent that any such untrue
statement or alleged untrue statement or omission or alleged omission (I) arises
out of or is based upon an untrue statement or omission with respect to the
Mortgage Loans, the related Mortgagors or the related Mortgaged Properties
contained in the Master Tape (it being herein acknowledged that the Master Tape
was used to prepare the Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, the Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) is contained in the information
regarding the Mortgage Loans, the related Mortgagor, the related Mortgaged
Property or the Mortgage Loan Seller set forth in the Prospectus Supplement and
the Memorandum under the headings "Summary of the Prospectus Supplement-The
Mortgage Pool" or "Summary of the Memorandum-The Mortgage Pool", as applicable,
"Risk Factors-The Mortgage Loans" and "Description of the Mortgage Pool" or on
Annex A to the Prospectus Supplement; provided that the foregoing were provided
to the Mortgage Loan Seller for its review, or (III) arises out of or is based
upon a breach of the representations and warranties of the Mortgage Loan Seller
set forth in or made pursuant to Section 2 (such representations and warranties,
together with the information described in the preceding clauses I and II, the
"Mortgage Loan Seller Information"); provided that the indemnification provided
by this Section 6 shall not apply to the extent that such untrue statement or
omission was made as a result of an error in (x) the manipulation of, or (y) any
calculations based upon, or (z) any aggregation (other than an aggregation made
in the Master Tape by the Mortgage Loan Seller) of, the information regarding
the Mortgage Loans, the related Mortgagor, the related Mortgaged Property or the
Mortgage Loan Seller set forth in the Master Tape and Annex A to the Prospectus
Supplement, including without limitation the aggregation of such information
with comparable information relating to the mortgage loans conveyed to the Trust
Fund by Xxxxxxx Xxxxx Mortgage Capital Inc. (the "MLMC Mortgage
-18-
Loans"). This indemnity agreement will be in addition to any liability which the
Mortgage Loan Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-01704 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated December 9,
1997, as supplemented by the prospectus supplement dated December 18, 1997 (the
"Prospectus Supplement"), relating to the Registered Certificates, including all
annexes thereto; "Memorandum" shall mean the private placement memorandum dated
December 18, 1997, relating to the Non-Registered Certificates; "Registered
Certificates" shall mean the Class A-1, Class A-2, Class B, Class C, Class D,
Class E and Class IO 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, Peabody Acceptance Corporation
I, Xxxxxx, Xxxxxxx & 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 attached to each of the
Prospectus and the Memorandum; and "Master Tape" shall mean the compilation of
information and data regarding the MLMC Mortgage Loans and the Mortgage Loans
covered by the Independent Accountants' Report on Applying Agreed-Upon
Procedures dated December 18, 1997 and rendered by Deloitte & Touche LLP (a
"hard copy" of which Master Tape was initialed on behalf of the Mortgage Loan
Seller and the Purchaser).
(b) The Company shall indemnify and hold harmless the Mortgage Loan Seller,
its directors, officers, employees and agents, and each person, if any, who
controls the Mortgage Loan Seller within the meaning of either the 1933 Act or
the 1934 Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus, the
Memorandum, the Diskette, any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates or any items similar to Computational
Materials or ABS Term Sheets forwarded to the prospective investors in the
Non-Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, except to the extent such untrue
statement, alleged untrue statement, omission or alleged omission is contained
in the Mortgage Loan Seller Information. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
-19-
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 6, except to the extent that it has been prejudiced in any
material respect, or from any liability which it may have, otherwise than under
this Section 6. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party 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 which are different from or additional to those
available to the indemnifying party, the indemnified party or parties 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 to such indemnified party for legal or other expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel (together
with one local counsel, if applicable), approved by the Company in the case of
subsection (a), representing the indemnified parties under subsection (a) of
this Section 6 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 in
writing 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 be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 6, then the Mortgage Loan Seller and the Company shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, in such proportion as is appropriate to reflect the relative fault of the
Mortgage Loan Seller on the one hand and the Company on the other in connection
with the statement or omission that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
-20-
by the Mortgage Loan Seller or the Company and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Mortgage Loan Seller and the Company agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were to be determined by per capita allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this subsection (d) subject to the limitations therein provided under subsection
(c). No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not also guilty of such fraudulent misrepresentation.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at World Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxx X. Xxxxxxxx fax number: (000) 000-0000,
or, if sent to the Mortgage Loan Seller, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention: Xxxxxx X. Xxxxxxxxxxx fax
number: (000) 000-0000.
8. Trust as Beneficiary. The representations, warranties and agreements
made by the Mortgage Loan Seller in this Agreement are made for the benefit of,
and, to the extent they are assigned by the Company to the Trustee under the
Pooling and Servicing Agreement, may be enforced by or on behalf of, the
Trustee, the Servicer or the Special Servicer, as provided in the Pooling and
Servicing Agreement, to the same extent that the Company has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein.
9. Miscellaneous. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person will have any
right or obligation hereunder, other than as provided herein.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Mortgage Loan Seller and the Company submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive transfer and sale of the Mortgage Loans to the Company and by the
Company to the Trustee notwithstanding any language to the contrary contained in
any endorsement of any Mortgage Loan.
-21-
11. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, this Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the Company agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
13. Amendments. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by a duly authorized
officer of the party against whom enforcement of such change, waiver, discharge
or termination is sought to be enforced. This Agreement may not be changed or
waived in any manner which would have a material adverse effect on
Certificateholders without the prior written consent of the Trustee.
[Signature page follows]
-22-
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
XXXXXXX XXXXX MORTGAGE CAPITAL, INC.
By: /s/ XXXXXX X. XXXXXXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
EXHIBIT A
MLMI 1997-C2
Mortgage Loan Schedule--Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
Control
Number Property Name Address City State Zip Code
------------------------------------------------------------------------------------------------------------------------------------
101 Wallingford Industrial 00 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
000 Xxxx Xxxxxx Xxxxxxxx Xxxxxx 00000 - 00000 Xxxxx Xxxxxx Xxxx Xxxxxx XX 00000
000 Xxxxx Xxxxxxx Apartments 000 Xxxxx Xxxxxxx Xxxxxxxx XX 00000
105 Establishment Apartments 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
106 Xxxxxxxx Self Storage 0000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 00000 Xxxxxx Xxxx Xxxxxx XX 00000
108 Moulin Rouge Apartments 1250 & 0000 Xxxxxx Xxxxx Xxxxx Xxxxxx XX 00000
109 AAAAA Rent-A-Space-San Leandro 0000 Xxxxxxxxx Xx Xxx Xxxxxxx XX 00000
000 Xxxxx Xxxxxxx Court Apartments 0000 Xxxxx Xxxxxx Xxxxxx XX 00000
112 Spring Rose Apartments 00000 Xxxx Xxxxx Xxxxxxx XX 00000
000 Xxxxxxxxx Xxxxxx Apartments 0000 Xxxxxxxxx Xxxxxxx XX 00000
115 Graycliff Apartments 0000 Xxxxxxxxx Xxxxx Xxxxxx XX 00000
116 Town & Country Business Park 4060, 4110 - 0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
117 Autumn Sunrise Apartments 0000 Xxxxxxx Xx. Xxxxxx Xxxxxxx XX 00000
119 Fountains of Jupiter Apartments 00000 Xxxxxxx Xxxx Xxxxxx XX 00000
120 Fountains of Woodmeadow Apartments 00000 Xxxxxxxxxx Xxxxxxx Xxxxxx XX 00000
000 Xxxxxxx Xxx - Xxx Xxxxxxx 0 Xxxxx Xxxxx Xxx Xxxxxxx XX 00000
000 Xxxxx Xxxx Xxxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
000 Xxxxxxxxxx Xxxxx Apartments 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxx & Xxxxxx - Xxx Xxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
125 Days Inn - Orange 0000 00xx Xxxxxx Xxxxxx XX 00000
000 Xxxxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxx XX 00000
127 Oaks at Centreport 00000 Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000
128 Seabreeze Apartments 0000 Xxxxx Xxxx Xxxxxx XX 00000
129 Shoney's Inn 000 Xxxxxxx Xxxxxxx Xxxx Xxxxx XX 00000
130 Days Inn - Augusta 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000
131 Days Inn Defiance 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
132 Days Inn Downtown - Indianapolis 000 Xxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
133 Food Circus - Wall 00xx Xxxxxx & Xxxxxxx 00 Xxxx XX 00000
000 Xxxx Xxxxxx - Xxx Xxxx 000 Xxxxx Xxxxxx Xxx Xxxx XX 00000
000 Xxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 83 and 00 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000
000 Xxxxxxx Xxx Xxxxxx - Xxxxxxxxxxx 000 Xxxxx Xxxxx Xxxxxxxxxxx XX 00000
000 Xxxxxxx Xxx - Xxxxxxxxx 000 XxXxxxxxx Xxxxx Xxxxxxxxx XX 00000
138 Days Inn - Woodlawn 000 Xxxx Xxxxxxxx Xxxx Xxxxxxxxx XX 00000
139 Holiday Inn Express-Carowinds 0000 Xxxxxxxx Xxxx. Xxxx Xxxx XX 00000
140 Super 8 - Raleigh 0000 Xxx Xxxx Xxxxxx Xxxxxxx XX 00000
000 Xxxxxxxxx Xxxxxxx Shopping Ctr. 0000-00 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
000 Xxxxx Xxxx Shopping Center 0000-0000 Xxxxxxxx Xxxxx Xxx Xxxxx XX 00000
145 Frelinghuysen Industrial 000 Xxxxxxxxxxxxx Xxxxxx Xxxxxx XX 00000
000 Xxxxxx Xxxxxxxx Xxxxx 16759-16707 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxx XX 00000
000 Xxxx Xxxxx 0000 Xxxxx Xxxx Xxxx XX 00000
149 Archways Apartments 0000-0000 Xxxxx Xxxx Xxxxxx XX 00000
000 Xxxxxxx Xxx Apartments 0000 Xxxxx Xxxxx Xxxxxx XX 00000
151 Tiffanywood/Harmonyrick Apartments 0000 X. Xxxxxx Xxxxx XX 00000
152 Brandywine Apartments 0000 Xxxxx 000xx Xxxx Xxx. Xxxxx XX 00000
153 Country Hollow Apartments 0000 Xxxx 00xx Xxxxxx Xxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxx 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx XX 00000
155 00-00 000xx Xxxxxx Apts. 00-00 000xx Xxxxxx Xxxxxx XX 00000
000 Xxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxx Xxx Xxxxxxxxxxx XX 00000
000 Xxxxxxxxx Xxxxxxx Apartments 0000 Xxxxx Xxxx Xxxxxxxxxxxx XX 00000
158 Village at Lakeside 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxxxx XX 00000
000 Xxxxxxx Xxxx Apartments 0000 Xxxxxx Xxxx Xxxxxxx XX 00000
160 Bucks County Industrial (95 Expressway) Progress & Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------
Control Original Cut-off Date Monthly Gross Remaining Maturity Ground
Number Balance Balance Payment Rate Term Amort Date Lease
-----------------------------------------------------------------------------------------------------------------------
101 2,400,000 2,393,133.60 19,552.40 8.640 117 297 09/01/2007 No
102 2,000,000 1,995,955.41 14,689.24 8.010 117 357 09/01/2007 No
104 1,500,000 1,495,252.04 11,597.12 8.020 57 297 09/01/2002 No
105 1,450,000 1,445,281.29 11,165.55 7.860 81 297 09/01/2004 No
106 1,600,000 1,595,202.09 12,878.80 8.375 117 297 09/01/2007 No
107 5,100,000 5,068,265.45 44,932.10 8.100 213 213 09/01/2015 No
108 2,250,000 2,242,758.50 17,431.72 7.930 177 297 09/01/2012 No
109 5,330,000 5,311,640.92 45,755.54 9.280 296 296 08/01/2022 No
111 1,650,000 1,646,427.21 12,560.58 7.840 118 298 10/01/2007 No
112 1,375,000 1,372,145.46 10,703.72 8.100 118 298 10/01/2007 No
114 2,700,000 2,693,920.78 18,841.83 7.480 117 357 09/01/2007 No
115 1,000,000 997,950.81 7,837.78 8.180 178 298 10/01/2012 No
116 5,475,000 5,456,045.25 41,761.14 8.125 116 320 08/01/2007 No
117 2,550,000 2,538,559.20 19,110.46 7.660 116 296 08/01/2007 No
119 2,500,000 2,494,799.36 18,118.06 7.870 177 357 09/01/2012 No
120 5,600,000 5,588,350.57 40,584.45 7.870 177 357 09/01/2012 No
121 1,500,000 1,490,771.10 13,375.54 8.875 236 236 08/01/2017 No
122 3,000,000 2,989,409.99 23,558.17 8.730 234 354 06/01/2017 No
123 2,000,000 1,997,327.95 14,582.95 7.820 118 358 10/01/2007 No
124 2,500,000 2,485,309.53 22,880.47 9.240 236 236 08/01/2017 No
125 1,450,000 1,444,594.52 12,512.53 8.875 261 261 09/01/2019 No
126 1,840,000 1,829,403.74 15,027.52 8.670 114 294 06/01/2007 No
127 15,540,000 15,494,443.57 109,830.84 7.610 116 356 08/01/2007 No
128 1,550,000 1,543,468.16 12,014.54 8.050 116 296 08/01/2007 No
129 3,250,000 3,235,974.46 30,029.47 9.375 237 237 09/01/2017 No
130 1,050,000 1,042,545.82 9,814.82 9.540 235 235 07/01/2017 No
131 1,900,000 1,884,155.58 18,009.32 9.740 234 234 06/01/2017 No
132 2,891,000 2,872,305.40 26,351.00 9.410 247 247 07/01/2018 No
133 3,800,000 3,785,163.47 30,649.86 8.520 176 296 08/01/2012 No
134 4,800,000 4,781,259.13 38,715.62 8.520 176 296 08/01/2012 No
135 3,600,000 3,583,452.82 28,253.87 8.330 79 307 07/01/2004 No
136 3,010,000 2,985,524.34 30,172.35 8.800 177 177 09/01/2012 No
137 1,925,000 1,899,970.50 19,927.46 9.350 175 175 07/01/2012 No
138 2,500,000 2,492,701.82 22,864.27 9.230 238 238 10/01/2017 No
139 2,680,000 2,672,176.36 24,510.50 9.230 238 238 10/01/2017 No
140 2,560,000 2,552,526.67 23,413.02 9.230 238 238 10/01/2017 No
142 2,650,000 2,889,343.38 22,745.99 8.492 115 325 07/01/2007 No
144 3,862,500 3,830,058.24 30,847.01 8.700 109 319 01/01/2007 No
145 4,300,000 4,286,477.00 33,359.19 8.060 117 297 09/01/2007 No
146 16,500,000 16,463,424.83 132,003.56 8.720 75 321 03/01/2004 No
148 4,200,000 4,176,294.10 34,644.25 8.790 234 294 06/01/2017 No
149 1,650,000 1,639,411.13 13,812.86 8.970 113 293 05/01/2007 No
150 1,840,000 1,834,315.72 14,409.25 8.170 117 297 09/01/2007 No
151 2,100,000 2,098,685.34 15,909.66 8.340 119 359 11/01/2007 No
152 5,350,000 5,343,242.53 37,591.33 7.550 118 358 10/01/2007 No
153 4,600,000 4,594,189.84 32,321.51 7.550 118 358 10/01/2007 No
154 7,125,000 7,116,115.23 50,307.83 7.600 118 358 10/01/2007 No
155 1,512,000 1,507,974.94 11,189.53 8.090 116 356 08/01/2007 No
156 5,040,000 5,026,825.40 37,616.10 8.180 116 356 08/01/2007 No
157 1,680,000 1,674,124.65 13,246.58 8.775 114 354 06/01/2007 No
158 2,500,000 2,498,288.20 18,170.14 7.900 119 359 11/01/2007 No
159 1,500,000 1,498,919.79 10,642.71 7.650 119 359 11/01/2007 No
160 8,450,000 8,443,057.48 59,473.36 7.460 119 359 11/01/2007 No
-------------------------------------------------------------------------------------------
Control Underwriting Net Subservicing (1) Servicing Fee
Number Reserves Rate Fees Fees Subservicer
-------------------------------------------------------------------------------------------
101 0.16 per sq. ft. 8.535 0.060 0.105 X.X. Xxxxxx
102 0.16 per sq. ft. 7.905 0.060 0.105 X.X. Melody
104 250 per unit 7.915 0.060 0.105 X.X. Xxxxxx
105 225 per unit 7.755 0.060 0.105 X.X. Melody
106 0.15 per sq. ft. 8.270 0.060 0.105 X.X. Xxxxxx
107 0.28 per sq. ft. 7.995 0.060 0.105 X.X. Melody
108 263 per unit 7.825 0.060 0.105 X.X. Xxxxxx
109 0.15 per sq. ft. 9.175 0.060 0.105 X.X. Melody
111 250 per unit 7.735 0.060 0.105 X.X. Xxxxxx
112 261 per unit 7.995 0.060 0.105 X.X. Melody
114 250 per unit 7.375 0.060 0.105 X.X. Xxxxxx
115 250 per unit 8.075 0.060 0.105 X.X. Melody
116 0.17 per sq. ft. 8.020 0.060 0.105 X.X. Xxxxxx
117 250 per unit 7.555 0.060 0.105 X.X. Melody
119 220 per unit 7.765 0.060 0.105 X.X. Xxxxxx
120 235 per unit 7.765 0.060 0.105 X.X. Melody
121 4% of revenue 8.770 0.060 0.105 X.X. Xxxxxx
122 0.16 per sq. ft. 8.625 0.060 0.105 X.X. Melody
123 225 per unit 7.715 0.060 0.105 X.X. Xxxxxx
124 4% of revenue 9.135 0.060 0.105 X.X. Melody
125 4% of revenue 8.770 0.060 0.105 X.X. Xxxxxx
126 250 per unit 8.565 0.060 0.105 X.X. Melody
127 250 per unit 7.505 0.060 0.105 X.X. Xxxxxx
128 260 per unit 7.945 0.060 0.105 X.X. Melody
129 4% of revenue 9.270 0.060 0.105 X.X. Xxxxxx
130 4% of revenue 9.435 0.060 0.105 X.X. Melody
131 4% of revenue 9.635 0.060 0.105 X.X. Xxxxxx
132 4% of revenue 9.305 0.060 0.105 X.X. Melody
133 0.24 per sq. ft. 8.415 0.060 0.105 X.X. Xxxxxx
134 0.27 per sq. ft. 8.415 0.060 0.105 X.X. Melody
135 0.15 per sq. ft. 8.225 0.060 0.105 X.X. Xxxxxx
136 4% of revenue 8.695 0.060 0.105 X.X. Melody
137 4% of revenue 9.245 0.060 0.105 X.X. Xxxxxx
138 4% of revenue 9.125 0.060 0.105 X.X. Melody
139 4% of revenue 9.125 0.060 0.105 X.X. Xxxxxx
140 4% of revenue 9.125 0.060 0.105 X.X. Melody
142 0.21 per sq. ft. 8.387 0.060 0.105 X.X. Xxxxxx
144 0.15 per sq. ft. 8.595 0.060 0.105 X.X. Melody
145 0.17 per sq. ft. 7.955 0.060 0.105 X.X. Xxxxxx
146 0.17 per sq. ft. 8.615 0.060 0.105 X.X. Melody
148 0.15 per sq. ft. 8.685 0.060 0.105 X.X. Xxxxxx
149 228 per unit 7.762 1.163 1.208 Arbor National
150 225 per unit 7.755 0.370 0.415 Arbor National
151 250 per unit 8.235 0.060 0.105 X.X. Melody
152 200 per unit 7.405 0.100 0.145 Midland
153 225 per unit 7.405 0.100 0.145 Midland
154 225 per unit 7.455 0.100 0.145 Midland
155 225 per unit 7.745 0.300 0.345 Arbor National
156 150 per unit 7.745 0.390 0.435 Arbor National
157 225 per unit 7.748 0.982 1.027 Arbor National
158 250 per unit 7.795 0.060 0.105 X.X. Xxxxxx
159 278 per unit 7.545 0.060 0.105 X.X. Melody
160 0.17 per sq. ft. 7.355 0.060 0.105 X.X. Xxxxxx
-------------------------------------------------------------------------------------------
(1) Servicing Fees consist of Master Servicing, Sub-Servicing, Special and Trustee Fees
EXHIBIT B
FORM OF CERTIFICATE OF AN OFFICER OF
XXXXXXX XXXXX MORTGAGE CAPITAL, INC.
I, ______________________, hereby certify that I am an authorized signatory
of Xxxxxxx Xxxxx Mortgage Capital, Inc., a Delaware Corporation (the "Seller"),
and that, based upon information provided to me by appropriate officers, certify
further as follows, to the best of my knowledge:
1. The representations and warranties of the Seller in the Mortgage
Loan Purchase Agreement, dated as of __________, 1997 (the "Purchase
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.
2. The Seller has, in all material aspects, complied with all the
agreements and satisfied all the conditions on its part that are required
under the Purchase Agreement to be performed or satisfied at or prior to
the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1997.
XXXXXXX XXXXX MORTGAGE CAPITAL, INC.
By: ________________________________
Name:
Title: Authorized Signatory
I, ______________________, a ________________ of the Seller, hereby certify
that ______________________ is an authorized signatory of the Seller and that
the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1997.
By: ________________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct its
business as presently conducted by it and to own the Mortgage Loans, is duly
qualified as a foreign corporation in good standing in the State of New York,
and the Mortgage Loan Seller has taken all necessary action to authorize the
execution, delivery and performance of the Mortgage Loan Purchase and Sale
Agreement by it, and has the power and authority to execute, deliver and perform
the Mortgage Loan Purchase and Sale Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with, and perform its
obligations under, the Mortgage Loan Purchase and Sale Agreement.
2. The Mortgage Loan Purchase and Sale Agreement has been duly authorized,
executed and delivered by the Mortgage Loan Seller and constitutes the legal,
valid and binding obligations of the Mortgage Loan Seller, enforceable against
the Mortgage Loan Seller in accordance with the terms of the Mortgage Loan
Purchase and Sale Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase and Sale
Agreement by the Mortgage Loan Seller and the performance of its obligations
under the Mortgage Loan Purchase and Sale Agreement will not conflict with any
provision of any law or regulation to which the Mortgage Loan Seller is subject,
or conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Mortgage Loan Seller's
organizational documents or, to our knowledge, any agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or any order
or decree applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or property,
in each case which would materially and adversely affect the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by the Mortgage
Loan Purchase and Sale Agreement.
4. There is no action, suit, proceeding or investigation pending or
threatened, against the Mortgage Loan Seller in any court or by or before any
other governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by this
Agreement.
5. To our knowledge, the Mortgage Loan Seller is not in default with
respect to any order or decree of any court or any order, regulation or demand
of any federal,
C-1
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 Mortgage Loan Seller or its properties or might have
consequences that would materially and adversely affect its performance under
the Mortgage Loan Purchase and Sale Agreement.
6. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase and Sale Agreement or the consummation of
the transactions contemplated by the Mortgage Loan Purchase and Sale Agreement,
other than those which have been obtained by the Mortgage Loan Seller.
In addition, counsel shall state (which statement shall be in form and
substance reasonably acceptable to the Company) their view as to the accuracy of
the information regarding the Mortgage Loans in the Prospectus Supplement and
the Private Placement Memorandum.
C-2
EXHIBIT D
SCHEDULE OF MORTGAGE LOANS TO ONE BORROWER
OR GROUP OF AFFILIATED BORROWERS
D-1
XXXXXXX XXXXX BORROWER CONCENTRATION
MLMI 1997-C2
------------------------------------------------------------------------------------------------------------------------------------
CONTROL # PROPERTY NAME PROPERTY TYPE COMMON PRINCIPAL ORIG. BALANCE CUT-OFF BALANCE
------------------------------------------------------------------------------------------------------------------------------------
152 Brandywine Apartments Multifamily Xxxx Xxxx & Xxxxx Xxxxxxx 5,350,000.00 5,343,242.53
153 Country Hollow Apartments Multifamily Xxxx Xxxx & Xxxxx Xxxxxxx 4,600,000.00 4,594,189.84
154 Windsail Apartments Multifamily Xxxx Xxxx & Xxxxx Xxxxxxx 7,125,000.00 7,116,115.23
--------------------------------------
17,075,000.00 17,053,547.60
133 Food Circus - Wall Anchored Retail Xxxxxx & Xxxx Xxxxxxxx 3,800,000.00 3,785,163.47
134 Food Circus - Red Bank Anchored Retail Xxxxxx & Xxxx Xxxxxxxx 4,800,000.00 4,781,259.13
--------------------------------------
8,600,000.00 8,566,422.60
119 Suss-Fountains of Jupiter Apartments Multifamily Xxx Xxxxxxx 2,500,000.00 2,494,799.36
000 Xxxx-Xxxxxxxxx xx Xxxxxxxxxx Multifamily Xxx Xxxxxxx 5,600,000.00 5,588,350.57
Apartments
--------------------------------------
8,100,000.00 8,083,149.94
138 Days Inn - Woodlawn Hospitality Xxxxxxx Xxxxx & Xxxxx Xxxxx 2,500,000.00 2,492,701.82
139 Holiday Inn Express-Carowinds Hospitality Xxxxxxx Xxxxx & Xxxxx Xxxxx 2,680,000.00 2,672,176.36
140 Super 8 - Raleigh Hospitality Xxxxxxx Xxxxx & Xxxxx Xxxxx 2,560,000.00 2,552,526.67
--------------------------------------
7,740,000.00 7,717,404.85
000 Xxxxx Xxxx Xxxxxxxx Xxxxxx Anchored Retail Xxxxxx X. Xxxxx 3,000,000.00 2,989,409.99
148 Lima Plaza Anchored Retail Xxxxxx X. Xxxxx 4,200,000.00 4,176,294.10
--------------------------------------
7,200,000.00 7,165,704.09
000 Xxxxxxx Xxx Xxxxxx - Xxxxxxxxxxx Hospitality Bharnt Xxxxx 3,010,000.00 2,985,524.34
137 Comfort Inn - Rochester Hospitality Bharnt Xxxxx 1,925,000.00 1,899,970.50
--------------------------------------
4,935,000.00 4,885,494.84
D-2
SCHEDULE 1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
UNDER SECTION 3(b)
NONE
S-1-1
SCHEDULE 2
LIST OF MORTGAGE LOANS WHICH ARE EXCEPTIONS TO SECTION 2(b)(xii)
NONE
S-2-1
