MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
-----------------------------------------
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this "Agreement") dated
as of June 1, 1999, is between PaineWebber Mortgage Acceptance Corporation V, a
Delaware corporation (the "Purchaser"), and Xxxxx Xxxxxx Real Estate Securities
Inc., a Delaware Corporation (the "Mortgage Loan Seller").
The Mortgage Loan Seller intends to sell, assign and transfer to the
Purchaser, subject to the terms and conditions set forth below, certain mortgage
loans (the "Mortgage Loans"), which are described in, and set forth in, the
mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as Exhibit
A.
The Purchaser intends to deposit the Mortgage Loans into a trust fund
(the "Trust Fund"), beneficial ownership of which will be evidenced by a series
of mortgage pass-through certificates (the "Certificates"). The Trust Fund will
be created and the Certificates will be issued pursuant to the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement") dated as of June 1,
1999, by and among PaineWebber Mortgage Acceptance Corporation V, as depositor
(the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer (the
"Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through PaineWebber
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
as of June 7, 1999. The Purchaser intends to sell certain of the Certificates
(the "Publicly Offered Certificates") to PaineWebber Incorporated and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in such capacity, the
"Underwriters") on the Closing Date pursuant to an underwriting agreement (the
"Underwriting Agreement") dated as of June 1, 1999. The transactions
contemplated by the Pooling and Servicing Agreement are sometimes referred to
herein as the "Securitization Transaction." Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this Agreement by this reference,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby conclusively acknowledged, the parties hereto hereby agree as
follows:
1
ARTICLE I.
DEFINITIONS
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the mortgage loans sold to the Purchaser by Xxxxxxx Xxxxx Mortgage
Capital Inc. pursuant to the Xxxxxxx Xxxxx Mortgage Loan Purchase and Sale
Agreement, or as otherwise separately agreed upon in writing by the Purchaser,
the Mortgage Loan Seller and Xxxxxxx Xxxxx Mortgage Capital Inc.
"Bondable Lease": The bondable lease identified in Exhibit E attached
hereto.
"Breach": The meaning ascribed to such term in Section 3.3.
"Closing Date": June 7, 1999.
"Credit Lease": A lease of real property on a long-term net-lease basis
to a Tenant whose long-term unsecured debt rating (or the long-term unsecured
debt rating of the guarantor of its obligations under the related lease) is the
basis on which the related Mortgage Loan Seller underwrote the related Mortgage
Loan.
"Credit Tenant Loan": Any Mortgage Loan that is secured by a Mortgage
on a Mortgaged Property that is leased on a long-term net-lease basis to a
tenant whose long-term unsecured debt rating (or the long-term unsecured debt
rating of the guarantor of its obligations under the related lease) is the basis
on which the related Mortgage Loan Seller underwrote the related Mortgage Loan.
"Credit Tenant Property": A Mortgaged Property that is leased to one or
more tenants pursuant to one or more Credit Leases.
"Cut-off Date": June 1, 1999, except that with respect to one Mortgage
Loan, the Cut-off Date is June 5, 1999.
"Defective Document Mortgage Loan": The meaning ascribed to such term
in Section 3.3(b).
"Initial Pool Balance": An amount equal to approximately $704,764,603.
"Xxxxxxx Xxxxx Mortgage Loan Purchase and Sale Agreement": That certain
mortgage loan purchase and sale agreement, together with the supplemental
mortgage loan purchase and sale agreement, dated as of the date hereof, by and
between Xxxxxxx Xxxxx Mortgage Capital Inc., as mortgage loan seller, and the
Purchaser.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
2
"Mortgage File": The meaning ascribed to such term in Section 2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.03 of this Agreement. As used herein, the
term "Mortgage Loan" includes each related Mortgage Note, the related Mortgage
and other documents contained in the related Mortgage File and any related
agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreements executed in connection with
such Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any IDOT Guarantor and any other Person that owns or has
acquired the related Mortgaged Property and/or assumed the obligations of the
original obligor under the Mortgage Note. The representations and warranties
made by the Mortgage Loan Seller in this Agreement as to "each Mortgagor" are
given with respect to the obligor or the IDOT Guarantor to the extent
applicable.
"Policies": The meaning ascribed to such term in Section 3.2(b)(lii).
"Prospectus Supplement": That certain prospectus supplement, dated June
1, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as of the
date of purchase;
(ii) all accrued and unpaid interest to but not including the Due Date
in the Due Period during which such Mortgage Loan or REO Loan was
purchased;
(iii) all related unreimbursed Servicing Advances and accrued and
unpaid interest on related Advances at the Reimbursement Rate and
unpaid Special Servicing Fees allocable to such Mortgage Loan;
plus
3
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Servicer, the Special Servicer, the Depositor
or the Trustee in respect of the Breach or defect giving rise to
the repurchase obligation, including any expenses arising out of
the enforcement of the repurchase obligation.
"Tenant": A tenant of a Credit Tenant Property.
[End of Article I]
4
ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the terms and
conditions of this Agreement, the Mortgage Loan Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans on the Closing Date; provided,
however, that the Purchaser shall not be obligated to purchase any Mortgage Loan
which fails to satisfy the representations and warranties set forth in Section
3.1 hereof. (b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of O'Melveny & Xxxxx LLP, New York, New York, at
10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full consideration for the
Mortgage Loan Seller's sale of the Mortgage Loans to the Purchaser, the
Purchaser will deliver to the Mortgage Loan Seller an amount equal to
$464,667,812.67 in immediately available funds, which represents the purchase
price of the Mortgage Loans net of the Mortgage Loan Seller's Allocable Share of
expenses as provided in Section 5.1(b).
2.3. Conveyance of Mortgage Loans. On the Closing Date, the Mortgage
Loan Seller shall sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse but subject to the terms of this Agreement, and the
Purchaser shall purchase, all right, title and interest of the Mortgage Loan
Seller in and to the Mortgage Loans, including: (i) all scheduled payments of
interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before the Closing
Date, the Mortgage Loan Seller shall deliver to and deposit with, or cause to be
delivered to and
5
deposited with, the Purchaser, the Trustee or a custodian of the Trustee (as
Purchaser shall direct), each of the following documents for each Mortgage Loan
(such documents, the "Mortgage File"):
(i) each original Mortgage Note (including, in the case of each IDOT
Loan, the note originally made by the borrower in favor of the
related originator and the note made by the IDOT Guarantor under
the related IDOT Guaranty in favor of the borrower under such
IDOT Loan), bearing, or accompanied by, all prior and
intervening endorsements or assignments showing a complete chain
of endorsement or assignment from the originator of the Mortgage
Loan to a Mortgage Loan Seller, and further endorsed (at the
direction of the Purchaser), on its face or by allonge attached
thereto, without recourse, to the order of the Trustee in the
following form: "Pay to the order of LaSalle Bank National
Association, as trustee for the registered Holders of
PaineWebber Mortgage Acceptance Corporation V Commercial
Mortgage Pass-Through Certificates, Series 1999-C1, without
recourse, representation or warranty, express or implied" or in
blank;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified copies
from the applicable recording office) of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the applicable Mortgage
Loan Seller, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form, to
"LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1" or in blank;
(iv) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in
recordable form, executed by the applicable Mortgage Loan Seller
to "LaSalle Bank National Association, as Trustee for the
benefit of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the originals
or copies of any intervening assignments thereof showing a
complete chain of assignment
6
from the originator of the Mortgage Loan (if different than the
applicable Mortgage Loan Seller) to the applicable Mortgage Loan
Seller, in each case with evidence of recording thereon;
(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller to
"LaSalle Bank National Association, as Trustee for the benefit
of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements,
with evidence of recording thereon, where appropriate, in those
instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been
consolidated or modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee
interest in the Mortgaged Property, or if the policy has not yet
been issued, an original or copy of a written commitment,
interim binder or the pro forma title insurance policy, dated as
of the date on which the related Mortgage Loan was funded;
(x) the original or a copy of any guaranty (other than the IDOT
Guaranty) of the obligations of the Mortgagor under the Mortgage
Loan;
(xi) all UCC Financing Statements and continuation statements or
copies thereof sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged Property
(in each case with evidence of filing thereon), and to transfer
such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with evidence
of recording thereon) granted by the Mortgagor if the Mortgage,
any Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that is
subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan;
(xiv) a survey of the related Mortgaged Property;
(xv) in the case of an IDOT Loan, an original of the related IDOT
Guaranty;
7
(xvi) in the case of a CTL Loan, the original Residual Value Policy
and/or Lease Enhancement Policy, if any, with all endorsements;
(xvii) the original or copy of any related cash management agreements
and lockbox agreements, if any;
(xviii) the original or copy of any related environmental reports;
(xix) the original or copy of any related Sub-Servicing Agreement, if
any;
(xx) the original or copy of any related ground leases; and
(xxi) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iv), (vi), (viii), (xi) and
(xii) of Section 2.4(a), with evidence of filing or recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing) is delivered to the Purchaser, the Trustee or
a Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) to be
a true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, is delivered to the
Purchaser, the Trustee or such Custodian within 120 days of the Closing Date (or
within such longer period after the Closing Date as the Purchaser may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Section 2.4(b) shall
be deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of the documents and/or instruments referred to in clause (ii) of Section
2.4(a) by the
8
appropriate county recorder's office to be a true and complete copy of the
original thereof submitted for recording) is delivered to the Purchaser, the
Trustee or a Custodian appointed thereby on or before the Closing Date together
with an affidavit certifying that the original thereof has been lost or
destroyed. With respect to any Mortgage Loan, and notwithstanding the foregoing
or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on or before the
Closing Date that does not contain the filing information for the related UCC-1
and/or UCC-2 if such UCC-1 and/or UCC-2 has not been returned to the Mortgage
Loan Seller by the applicable filing office, and the Mortgage Loan Seller may
deliver an assignment referred to in clauses (iii), (v) or (vii) of Section
2.4(a) that does not contain the recording information for the related Mortgage,
Assignment of Leases or Security Agreement, as applicable, if such Mortgage,
Assignment of Leases or Security Agreement has not been returned to the Mortgage
Loan Seller by the applicable recording office. The Mortgage Loan Seller hereby
authorizes the Purchaser, acting in its stead and on its behalf, to fill in any
missing filing or recording information or any instrument or document required
to be delivered pursuant to this subsection (b).
(c) Except under the circumstances provided for in the last sentence of
this subsection (c), the Mortgage Loan Seller shall as to each Mortgage Loan,
promptly (and in any event within 30 days of the later of the Closing Date and
the Purchaser's and Trustee's actual receipt of the related documents) cause the
related documents to be delivered to the Trustee in recordable form for
recording or filing, as the case may be, in the appropriate public office for
real property records or UCC Financing Statements, as appropriate, each
assignment referred to in clauses (iii), (v) and (vii) of Section 2.4(a) and
each UCC-3 to the Trustee referred to in clause (xi) of Section 2.4(a) as
indicated in such assignment documents. Each such assignment shall reflect that
it should be returned by the public recording office to the Trustee or its
designee following recording, and each such UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee or its designee following filing.
If any such document or instrument is lost or returned unrecorded or unfiled, as
the case may be, because of a defect therein, the Purchaser or an assignee
thereof, which may include, the Trustee or a Custodian or its agent shall
prepare or cause to be prepared a substitute therefor or cure such defect, as
the case may be, and thereafter the Trustee shall upon receipt thereof cause the
same to be duly recorded or filed, as appropriate, all at the Mortgage Loan
Seller's expense. The Purchaser shall execute, or cause the Mortgage Loan Seller
to execute any replacement document or instrument being filed in substitution
for any such lost or returned unrecorded or unfiled document or instrument at
the Mortgage Loan Seller's expense and assist the Purchaser, the Trustee or a
Custodian or its agent in recording or filing such documents or instruments.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clause (iii), (v) or (vii) of the
Section 2.4(a), or to file any UCC-3 referred to in clause (xi) of Section
2.4(a) in those jurisdictions where, in the written opinion of local counsel of
Purchaser, the Trustee or a Custodian acceptable to the Purchaser and the
Trustee, such recordation and/or filing is not required to protect the
Purchaser's or the Trustee's interest in the Mortgage Loans against sale,
further assignment, satisfaction or discharge by the Mortgage Loan Seller or the
Purchaser.
(d) All documents and records in the Mortgage Loan Seller's possession
relating to the Mortgage Loans (including financial statements, operating
statements and any other information provided by the respective Mortgagor from
time to time) or copies thereof, that are not required to be a part of a
Mortgage File in accordance with the definition thereof shall be delivered to
the Servicer on or before the Closing Date.
9
(e) Mortgage Loan Seller shall cause all funds on deposit in escrow
accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any other name to be transferred to the Servicer
promptly after the Closing Date, but in all events within three (3) business
days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Within 90 days of the Closing Date,
the Purchaser or an assignee thereof, which may include the Trustee or a
Custodian on its behalf, shall complete a review of each of the Mortgage Loan
Documents delivered or caused to be delivered by the Mortgage Loan Seller
constituting the Mortgage Files and shall certify, as to each Mortgage Loan,
that (i) all documents required to be delivered pursuant to Section 2.4 are in
its possession, (ii) such documents appear regular on their face and relate to
such Mortgage Loan, and (iii) based on the examinations referred to in this
Section 2.5 and only as to the foregoing documents, the information set forth in
the Mortgage Loan Schedule with respect to the items specified in clauses (i),
(ii)(a), (iv), (v), (vii) and (x)(c) of the definition of "Mortgage Loan
Schedule" set forth in the Pooling and Servicing Agreement is correct. If the
Purchaser or such assignee discovers or receives notice that any such document
described in the first or second preceding sentence is a Defective Document
Mortgage Loan, the Mortgage Loan Seller shall correct or cure any such omission
or defect or repurchase such Defective Document Mortgage Loan in accordance with
Section 3.3 of this Agreement.
[End of Article II]
10
ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the Closing Date:
(i) Purchaser Duly Formed and Authorized. The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, and the Purchaser has taken all necessary
corporate 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,
including, but not limited to, the power and authority to purchase and
acquire the Mortgage Loans in accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Purchaser hereunder are the
legal, valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization
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);
(iii) No Conflict with Law or Agreements. The execution and delivery of
this Agreement and the performance by the Purchaser of its obligations
hereunder will not conflict with any provisions of any law or regulations
to which the Purchaser is subject, or conflict with, result in a breach of
or constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Purchaser or any
indenture, agreement or instrument to which the Purchaser is a party or by
which it is bound, or any order or decree applicable to the Purchaser, or
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, which would materially and adversely affect the ability
of the Purchaser to carry out the transactions contemplated by this
Agreement; the Purchaser has obtained any consent, approval, authorization
or order of any court or governmental agency or body required for the
execution, delivery and performance by the Purchaser of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending or,
to the Purchaser's knowledge, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which
would
11
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Purchaser to carry out the transactions contemplated by this
Agreement.
3.2. Representations and Warranties of the Mortgage Loan Seller.
(a) The Mortgage Loan Seller hereby represents and warrants with respect to
itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, 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 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 and transfer the Mortgage Loans in accordance with this
Agreement;
(ii) Legal and Binding Obligations. Assuming the due authorization,
execution and delivery of this Agreement by each other party hereto, this
Agreement and all of the obligations of the Mortgage Loan Seller hereunder
are the legal, valid and binding obligations 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 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);
(iii) No Conflict with Law or Agreements. The execution and delivery of
this Agreement and the performance by the Mortgage Loan Seller of its
obligations hereunder will not conflict with any provisions of any law or
regulations 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 the certificate of incorporation or the by-laws
of the Mortgage Loan Seller or any indenture, 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, which would materially and adversely affect the ability
of the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement; the Mortgage Loan Seller has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the Mortgage
Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding pending or,
to the Mortgage Loan Seller's knowledge, 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;
12
(v) Mortgage Files in Possession. The Mortgage Loan Seller is in
possession of a Mortgage File with respect to each Mortgage Loan identified
on the Mortgage Loan Schedule and each such Mortgage File will be
transferred to the Purchaser or the Trustee as its designee. The Mortgage
Loan Seller has not withheld any material information with respect to the
Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in default in
the performance of any obligations, covenants or conditions contained in
any material agreement or instrument to which it is party, which default
might have consequences that would materially and adversely affect the
financial conditions or operations of the Mortgage Loan Seller or its
properties taken as a whole or would have consequences that would
materially and adversely affect its performance hereunder.
(b) Representations and Warranties as to the Mortgage Loans. 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 Cut-off Date:
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true,
complete and accurate in all material respects as of June 1,
1999.
(ii) Representations and Warranties Remain True. The Mortgage Loan
Seller has not taken any action that would cause the
representations and warranties made by each Mortgagor under the
related Mortgage Loan not to be true. The Mortgage Loan Seller
has no knowledge that the material representations and
warranties made by the Mortgagor in each Mortgage Loan are not
true in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller, Originator or
Mortgagor. (A) Neither the Mortgage Loan Seller, nor, to the
Mortgage Loan Seller's best knowledge, (1) any originator other
than the Mortgage Loan Seller or (2) the Mortgagor, committed
any fraudulent acts during the origination process of any
Mortgage Loan, (B) with respect to each Mortgage Loan that
Mortgage Loan Seller originated, the origination of such
Mortgage Loan is in all material respects legal, proper and
prudent in accordance with customary industry standards utilized
by prudent institutional and commercial mortgage lenders and (C)
to the best of the Mortgage Loan Seller's knowledge, (1) the
origination of each Mortgage Loan purchased by the Mortgage Loan
Seller and (2) the servicing and collection of each Mortgage
Loan is in all material respects legal, proper and prudent in
accordance with customary industry standards utilized by prudent
institutional and commercial mortgage lenders or loan servicers
as appropriate.
(iv) Mortgage Loan Seller's Title to Mortgage Loans. Immediately
prior to the sale of the Mortgage Loan to the Depositor, the
Mortgage Loan Seller had good and marketable title to and was
the sole owner and holder of each Mortgage Loan, and the
assignment validly transferred its ownership of
13
the Mortgage Loan, free and clear of any and all liens, pledges
and other encumbrances (other than the Mortgage Loan Seller's
obligation to repurchase defective Mortgage Loans), subject to
exceptions of the type set forth in item (xlv) below.
(v) No Delinquency. No monthly payment of principal of or interest
on any Mortgage Loan has been more than 30 days delinquent since
origination and as of the Cut-off Date for such Mortgage Loan,
no monthly payment of principal of or interest on such Mortgage
Loan is 30 or more days delinquent.
(vi) No Default. There is no material default, breach, violation or
event of acceleration existing under the related Mortgage or
Mortgage Note, and to the Mortgage Loan Seller's knowledge,
there is 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
such a default, breach, violation or event of acceleration.
(vii) No Modification or Release. Since origination, such Mortgage
Loan has not been modified, altered, satisfied, canceled,
subordinated or rescinded, with the exception of any
modification, alteration, satisfaction, cancellation,
subordination or recission specifically disclosed in a written
instrument that (A) was entered into prior to the Cut-off Date,
(B) has been recorded in the applicable public recording office
if necessary to maintain the priority of the lien of the related
Mortgage and related Security Agreements, if any, and (C) is
being delivered to the Trustee or Custodian as part of the
related Mortgage File. 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. None of the related Mortgages contains terms
which provide for or require release of any portion of the
related Mortgaged Property from the lien of the Mortgage in any
manner which materially and adversely affects the adequacy of
the security provided by the Mortgaged Property.
(viii) No Insolvency. To the knowledge of the Mortgage Loan Seller,
neither the Mortgagor nor any guarantor is a debtor in any state
or federal bankruptcy or insolvency proceeding or any regulatory
proceeding.
(ix) No Proceedings. To the knowledge of the Mortgage Loan Seller, as
of the Closing Date, there is no pending action, suit or
proceeding, arbitration or governmental investigation against a
Mortgagor or Mortgaged Property, an adverse outcome of which
would materially and adversely affect such Mortgagor's ability
to perform under the related Mortgage Loan.
14
(x) Single-Purpose Borrower. (A) the Mortgage Loan Documents
executed in connection with each Mortgage Loan require that the
related Mortgagor be a single-purpose entity, (B) the Mortgage
Loan Seller has not waived such covenants and has no knowledge
that the Mortgagor is not in compliance therewith, (C) with
respect to each Mortgage Loan with a Cut-off Date balance
greater than 1% of the Initial Pool Balance the related
Mortgagor is a single purpose entity and (D) the Mortgagor is
organized under the laws of a state, territory or district of
the United States. For purposes of this representation,
"single-purpose entity" shall mean an entity, other than an
individual, the organizational documents of which limit its
purpose to owning and operating a single property or group of
properties, does not engage in any business unrelated to such
property and its financing, and does not have any assets other
than those related to its interest in the related Mortgaged
Property or its financing, or any indebtedness other than as
permitted under the related Mortgage Loan.
(xi) Mortgagor Is The Sole Owner of Interest in Lease Payments. No
person other than the Mortgagor owns any interest in any
payments due under the leases relating to the Mortgaged
Property that is superior to or of equal priority with the
Mortgage Loan Seller's interest therein.
(xii) Defeasance; No REMIC Disqualification. With respect to any
Mortgage Loan that pursuant to the Mortgage Loan Documents can
be defeased, (A) the Mortgage Loan cannot be defeased within
two years of the Closing Date, (B) the Mortgagor can pledge
only United States government securities (within the meaning of
section 2(a)(16) of the Investment Company Act of 1940) as the
substitute collateral and (C) the Mortgagor can be required by
the Master Servicer to establish that the release of the lien
is to facilitate the disposition of the Mortgaged Property or
is in connection with some other customary commercial
transaction and not as part of an arrangement to collateralize
a REMIC offering with obligations that are not real estate
mortgages.
(xiii) REMIC Qualification. Each Mortgage Loan constitutes a
"qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code (but without regard to the rule in Treasury
Regulation ss.1.860G-2(f)(2) that treats a defective obligation
as a "qualified mortgage" or any substantially similar
successor provision) and any and all Prepayment Premiums and
Yield Maintenance Charges constitute "customary prepayment
penalties" within the meaning of Treasury Regulation
ss.1.860G-1(b)(2).
(xiv) Existing Indebtedness. Except as set forth in Exhibit D, there
are no subordinate or pari passu Mortgages encumbering the
related Mortgaged Property, no preferred equity interests held
by the Mortgage Loan Seller or mezzanine debt related to such
Mortgaged Property.
15
(xv) No Additional Indebtedness. Except as set forth in Exhibit D,
each Mortgage Loan prohibits the related Mortgagor from
mortgaging or otherwise encumbering the Mortgaged Property and
from carrying any additional indebtedness except in connection
with (A) trade debt and equipment financings in the ordinary
course of Mortgagor's business and (B) liens arising by
operation of law that are contested in accordance with the
terms of the Mortgage Loan.
(xvi) Annual Reports. Each Mortgage Loan requires the related
Mortgagor to provide annual operating statements, rent rolls,
and other information that the holder of the Mortgage Loan may
reasonably request in connection with the related Mortgagor and
the related Mortgaged Property.
(xvii) Proceeds Fully Disbursed. The proceeds of each 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. No advance of funds has
been made by the Mortgage Loan Seller , any affiliate or any
third party originator to the related Mortgagor and no funds
have been received from or on behalf of any person other than
the related Mortgagor for, or on account of, payments due on
the Mortgage Loan.
(xviii) No Negative Amortization. Other than the ARD Loans, which may
have negative amortization from and after their respective
Anticipated Repayment Dates, no Mortgage Loan provides for a
shared appreciation or equity participation feature, any other
contingent or additional interest feature or the negative
amortization of interest.
(xix) Whole Loan. Each Mortgage Loan is a whole loan. Neither
Mortgage Loan Seller nor any affiliate thereof has any
obligation to make any capital contributions to any Mortgagor
under a Mortgage Loan other than contributions made on or prior
to the closing date.
(xx) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any mortgage loan that is not
included in the Trust.
(xxi) Conditions for Releases of Mortgaged Property. Except in
connection with Mortgage Loans that are cross-collateralized
and certain Mortgage Loans that are secured by more than one
Mortgaged Property, no Mortgage Loan allows the Mortgage Loan
Seller to release any portion of the related Mortgaged Property
from the lien of the related Mortgage except upon (A) payment
in full of all amounts due under the related Mortgage Loan, (B)
releases of unimproved out-parcels, (C) releases of portions of
the Mortgaged Property that will not have a material adverse
effect on the adequacy of the remaining collateral for the
related Mortgage Loan or (D) substitution of government
securities for such Mortgaged
16
Property in a defeasance complying with Treasury Regulations
ss.1.860G-2(a)(8).
(xxii) Documents Valid. Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreement executed in
connection with each Mortgage Loan is the legal, valid and
binding obligation of the related Mortgagor, enforceable in
accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption or other laws affecting
the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxiii) Assignments of Leases Create First Priority Security Interest.
Unless the related Mortgaged Property is owner occupied, the
Mortgage File for such Mortgage Loan contains an Assignment of
Leases, either as a separate instrument or incorporated into
the related Mortgage, which creates in favor of the holder
thereof a valid, collateral or first priority assignment of, or
a valid first priority security interest in, certain rights
under the related leases, subject only to a license granted to
the related Mortgagor to exercise certain rights and to perform
certain obligations of the lessor under such leases, including
the right to operate the related Mortgaged Property. Each
related assignment of Mortgage from the Mortgage Loan Seller to
the Trustee and any related reassignment of Assignment of
Leases, if any, or assignment of any other agreement executed
in connection with each Mortgage Loan, from the Mortgage Loan
Seller to the Purchaser (or the Trustee as its assignee)
constitutes the legal, valid, binding and enforceable
assignment from the Mortgage Loan Seller to the Purchaser (or
Trustee as its assignee) except as such enforcement may be
limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption or other laws affecting
the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(xxiv) Mortgages and Security Agreements Create First Lien. Each
Mortgage is a valid and enforceable first lien on the related
Mortgaged Property 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
17
current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the related
Mortgagor's ability to pay its obligations when they become
due or the value of the Mortgaged Property and (C) the
exclusions and exceptions (general and specific) set forth in
a lender's title insurance policy, none of which,
individually or in the aggregate, materially interferes with
the current use of the related Mortgaged Property or
materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's
ability to pay its obligations when they become due or the
value of the Mortgaged Property. As of the date of
origination of such Mortgage Loan and as of the Closing Date,
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 or are referred
to in the preceding sentence. Any Security Agreement, chattel
mortgage or equivalent document related to and delivered in
connection with the Mortgage Loan establishes and creates a
valid and enforceable first lien on and first priority
security interest in the personal property described therein
(including hotel revenues with respect to a Mortgaged
Property that is operated as a hotel), except as such
enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption or other
laws affecting the enforcement of creditors' rights generally
or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or
at law).
(xxv) No Defenses to Payment. The Mortgage Loan is not subject to
any right of rescission, set-off, abatement, diminution,
valid counterclaim or defense, including the defense of
usury, available to the related Mortgagor with respect to
such Mortgage Note, Mortgage, Assignment of Leases and other
agreements with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any default
interest, late charges, prepayment premiums, yield
maintenance charges.
(xxvi) Mortgage Loan Documents Comply With Law. The terms of each of
the Mortgage Loan Documents comply in all material respects
with all requirements of applicable local, state or federal
law.
(xxvii) Customary Provisions. Each related Mortgage contains
customary and enforceable (subject to bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting
creditors' rights generally or by general principles of
equity) provisions so 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, and there is no exemption available to the
Mortgagor which would interfere with such right to foreclose
(except as may be imposed by bankruptcy, insolvency,
moratorium, redemption or other similar laws affecting
creditors' rights generally or by general principles of
equity).
(xxviii) Mortgagor's Interest in Mortgaged Property. The interest of
the related Mortgagor in the related Mortgaged Property
consists of a fee simple estate or a leasehold estate in all
of the real property constituting a part of the Mortgaged
Property.
18
(xxix) Recorded Instruments. Both the Mortgage and the assignment of
Mortgage for each Mortgage Loan have been properly recorded
in the applicable jurisdiction and constitute the legal,
valid and binding assignment of such Mortgage Loan. Except as
set forth in Exhibit D attached hereto, the full amount of
the Mortgage has been recorded on each related Mortgaged
Property, and all applicable mortgage recording taxes have
been paid.
(xxx) UCC Financing Statements. A Form UCC-1 financing statement
has been submitted for filing or recordation with respect to
personal property constituting a part of the related
Mortgaged Property as to which a security interest can be
perfected by filing (including hotel revenues with respect to
a Mortgaged Property that is operated as a hotel), and a copy
of each Form UCC-2 or UCC-3 assignment, if any, of such
financing statement executed by the Mortgage Loan Seller in
blank which the Trustee or its designee is authorized to
complete (and but for the insertion of the name of the
assignee and any related filing information which is not yet
available to the Mortgage Loan Seller is in suitable form for
filing) and to file in the filing office in which such
financing statement was filed
(xxxi) Collateral. The Mortgage Note is not and has not been secured
by any collateral other than collateral covered by the
related Mortgage, the related Assignment of Leases (if any)
and any other agreement executed in connection with the
origination of the Mortgage Loan.
(xxxii) Borrower's Licenses and Permits. As of the date of
origination of each Mortgage Loan, and, to the Mortgage Loan
Seller's knowledge, as of the Cut-off Date, each related
Mortgagor 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.
(xxxiii) No Usury Violation. The Mortgage Rate (exclusive of any
excess interest on an ARD Loan after the related Anticipated
Repayment Date and any Default Interest, late charges,
Prepayment Premiums and Yield Maintenance Charges) of each
Mortgage Loan complied as of the date of origination with, or
is exempt from, applicable state or federal laws, regulations
and other requirements pertaining to usury; and 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 each Mortgage Loan.
(xxxiv) Acceleration Provisions. Each related Mortgage or loan
agreement contains provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan
if, without complying with the requirements of the Mortgage
or loan agreement, the related Mortgaged
19
Property, or any controlling interest therein, is directly or
indirectly transferred or sold (other than transfers for
estate planning purposes and other purposes where no change
of control occurs) or encumbered in connection with
subordinate financing (other than any indebtedness described
in clauses (xiv) and (xv) above) 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.
(xxxv) Non-Recourse Mortgage Loan. The Mortgage Loan Documents for
each Mortgage Loan provide that such Mortgage Loan is
non-recourse to the related parties thereto except for
certain acts including fraud, willful misconduct or material
misrepresentation by the related Mortgagor and/or its
affiliates, in which case either (A) such Mortgage Loan shall
become a recourse obligation of the Mortgagor or another
person or (B) the Mortgagor or another person shall assume
personal liability for any losses incurred by the Mortgage
Loan Seller or its assignee due to such acts. Additionally,
the Mortgage Loan Documents for each Mortgage Loan provide
that the related Mortgagor or another person thereunder shall
be liable to the related Mortgage Loan Seller for any losses
incurred by the Mortgage Loan Seller due to (1) the
misapplication or misappropriation of rents, insurance
proceeds or condemnation awards, (2) acts of waste and (3)
breaches of any environmental covenants contained in the
related Mortgage Loan Documents.
(xxxvi) Mortgages Secured by Deeds of Trust. To the knowledge of the
Mortgage Loan Seller, with respect to each 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
except in connection with a trustee's sale after a default by
the related Mortgagor (following demand on the related IDOT
Guaranty if applicable) or in connection with the release of
the related Mortgaged Property, no fees are or will become
payable to such trustee.
(xxxvii) Escrows. All amounts required to have been deposited by each
Mortgagor under the Mortgage Loan Documents have been
deposited. All of the Mortgage Loan Seller's interest in
these amounts will be conveyed to the trust. All requirements
for escrows are memorialized in one or more written
agreements that are contained within the Mortgage File for
such Mortgage Loan.
(xxxviii) Property Condition. To the Mortgage Loan Seller's knowledge,
based upon a site inspection conducted in connection with the
origination of the Mortgage Loan and a review of the related
engineering report, each related Mortgaged Property is free
and clear of any material damage that would affect materially
and adversely the value of such Mortgaged Property as
security for the Mortgage Loan; the Mortgage Loan Seller has
20
received no actual notice of (A) any proceeding pending for
the total or partial condemnation of such Mortgaged Property
or (B) any damage to such Mortgaged Property that materially
and adversely affects the value of such Mortgaged Property.
(xxxix) No Delinquent Charges. There are no delinquent taxes, ground
rents, insurance premiums or assessments (including, without
limitation, assessments payable in future installments or
other similar outstanding charges, water charges or sewer
rents) affecting any Mortgaged Property or such amounts, if
existing and in dispute, have been escrowed or covered by a
letter of credit. For purposes of this representation, an
obligation shall become "delinquent" on the date on which
both of the following conditions are satisfied: (A) interest
and/or penalties are due with respect to the unpaid amount
and (B) enforcement action can be taken by the related taxing
authorities.
(xl) No Encroachments. All improvements included in any MAI
appraisals are within the boundaries of the related Mortgaged
Property, with the exception of de minimis encroachments, and
the Mortgage Loan Seller has obtained title insurance
insuring against any losses arising from such de minimis
encroachments. No improvements on adjoining properties
encroach upon any Mortgaged Property except for de minimis
encroachments or encroachments as to which the Mortgage Loan
Seller has obtained title insurance coverage insuring against
losses arising from such encroachments.
(xli) Mortgaged Property Compliance with Zoning Laws Etc. The
improvements located on or forming part of each Mortgaged
Property materially comply with applicable zoning and
building laws, ordinances and regulations, or constitute a
legal non-conforming use or structure or, if any such
improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related
Mortgaged Property.
(xlii) Permanent Financing. The Mortgage Loan was not originated for
the purpose of financing the construction of uncompleted
improvements on the related Mortgaged Property.
(xliii) Property Inspections. The Mortgage Loan Seller has inspected
or caused to be inspected each related Mortgaged Property
within the past twelve months.
(xliv) Access. Each Mortgaged Property is located on or adjacent to
a dedicated road, or has access to an irrevocable easement
permitting ingress and egress, is served by public utilities
and services generally available in the surrounding community
and otherwise appropriate for the use in which the
21
Mortgaged Property is currently being utilized, and is a
separate tax parcel.
(xlv) First Priority Lien Insured. The lien of each related
Mortgage is a first priority lien on the fee or leasehold
interest of the related Mortgagor in the original principal
amount of the related Mortgage Loan or allocated loan amount
of the portions of the Mortgaged Property covered thereby (as
set forth in the related Mortgage) and is insured by an ALTA
lender's title insurance policy or its equivalent (or a
binding commitment therefor), insuring the Mortgage Loan
Seller, its successors and assigns in the original principal
amount of the Mortgage Loan after all advances of principal
have been paid, 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 the value of the
Mortgaged Property and (C) the exclusions and exceptions
(general and specific) set forth in such policy, none of
which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or
materially interferes with the security intended to be
provided by such Mortgage or with the related Mortgagor's
ability to pay its obligations when they become due or the
value of the Mortgaged Property. The premium for such policy
was paid in full; such policy was issued by a title insurance
company licensed to issue policies in the state in which the
related Mortgaged Property is located and is assignable to
the Purchaser 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 under such policy
and the Mortgage Loan Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such
act or omission, which would impair or diminish the coverage
of such policy.
(xlvi) Environmental Matters. A Phase I environmental report and
with respect to certain Mortgage Loans, a Phase II
environmental report, was conducted by a reputable
environmental engineer in connection with such Mortgage Loan,
which report did not indicate any material non-compliance or
material existence of hazardous material or, if any material
non-compliance or material existence of hazardous materials
was indicated in any such report, the remedial action
recommended to be taken in the report has been taken, or
funds sufficient to cover any recommended remedial action
have been escrowed by the related Mortgagor and held by the
Mortgage Loan Seller under the related Mortgage or the Tenant
under a Credit Tenant Loan has the obligation to remedy such
condition or circumstance. To the best of the Mortgage Loan
Seller's knowledge, in
22
reliance on such environmental reports, each Mortgaged
Property is in material compliance with all applicable
federal, state and local laws pertaining to environmental
hazards other than as disclosed in such environmental
reports, and to the best of the Mortgage Loan Seller's
knowledge, no notice of violation of such laws has been
issued by any governmental agency or authority, except as
indicated in certain environmental reports or other documents
previously provided to the Rating Agencies; the Mortgage Loan
Seller has not taken any action which would cause the
Mortgaged Property not to be in compliance with all federal,
state and local laws pertaining to environmental hazards.
Each Mortgagor represents and warrants in the related
Mortgage Loan Documents that except as set forth in certain
environmental reports and to the best of its knowledge it has
not used, caused or permitted to exist and will not use,
cause or permit to exist on the related Mortgaged Property
any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production
or disposal of hazardous materials. Each Mortgagor (or an
affiliate thereof) has agreed to indemnify, defend and hold
the Mortgage Loan Seller and its successors and assigns
harmless from and against 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 environmental
representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
(xlvii) Additional Insurance. Each Mortgage Loan requires that the
Mortgaged Property be covered by the following insurance
policies naming the Mortgagee and its successors and assigns
as additional insured, in an amount at least equal to the
lesser of the value of the replacement cost of the related
Mortgaged Property or the principal balance of the related
Mortgage Loan, and sufficient to avoid the operation of any
co-insurance provisions: (A) fire and extended perils
(included within the classification "All Risk of Physical
Loss"), (B) 12 months of business interruption or rental loss
insurance, (C) flood insurance if, based solely on a flood
zone certification or a survey of the related Mortgaged
Property, the property improvements are located in a 100-year
flood plain, or if any portion of the improvements on the
Mortgaged Property is located in a federally designated flood
area "A" and (D) 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 Cut-off Date have been paid;
such insurance policies may not be terminated or cancelled
without 30 days prior written notice to the insured (for
defaults other than non-payment, for which there is a minimum
of 10 days written notice of cancellation) and no such notice
has been received by the insured. Except as set forth in
Exhibit D, the insurance provider of
23
each such insurance policy has an A.M. Best's rating of at
least "A:X" or a claims paying ability rating of at least "A"
by Standard & Poor's or its equivalent. Other than the Credit
Tenant Loans, each related Mortgage Loan obligates the
related Mortgagor to maintain all such 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.
(xlviii) Application of Insurance and Condemnation Proceeds. Subject
to Clause (liv)(K) with respect to ground lease property, any
insurance proceeds in respect of a casualty loss or taking,
will be applied either to (A) the repair or restoration of
all or part of the related Mortgaged Property or (B) to the
payment of the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon, except that
in the case of a ground-leased property casualty and
condemnation proceeds are required to be paid first to the
owner of the fee interest in the related property in
accordance with terms of the related ground lease and then in
accordance with the related Mortgage.
(xlix) Terms of Mortgage. The Mortgage Loan is directly secured by a
Mortgage on a commercial, industrial, self-storage,
hospitality, mobile home park or multifamily residential
property, and either (A) substantially all of the proceeds of
the Mortgage Loan were used to acquire, improve or protect an
interest in such real property which, as of the origination
date, was the sole security for such Mortgage Loan (unless
the Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of the Code
at a time when the Mortgage Loan was not in default or
default with respect thereto was not reasonably foreseeable)
or (B) the fair market value of such real property was at
least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been
modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was
not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (2) at the Closing Date; provided that the
fair market value of the real property interest must first be
reduced by (I) the amount of any lien on the real property
interest that is senior to the Mortgage Loan (unless such
senior lien also secures a Mortgage Loan, in which event the
computation described in clauses (1) and (2) shall be made on
an aggregate basis) and (II) a proportionate amount of any
lien that is in parity with the Mortgage Loan (unless such
other lien secures a Mortgage Loan that is
cross-collateralized with such Mortgage Loan, in which event
the computation described in clauses (B)(1) and (B)(2) shall
be made on an aggregate basis.
(l) Appraisal. The Mortgage File contains an appraisal of the
related Mortgaged Property, which appraisal is signed by a
qualified appraiser, who, to the best of the Mortgage Loan
Seller's knowledge, had no interest,
24
direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and
whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal and appraiser
both satisfy the requirements of the "Uniform Standards of
Professional Appraisal Practice" as adopted by the Appraisal
Standards Board of the Appraisal Foundation, all as in effect
on the date the Mortgage Loan was originated.
(li) Credit Tenant Loans. With respect to each Mortgage Loan which
is identified as a Credit Tenant Loan on Exhibit E attached
hereto:
(A) except as set forth in Exhibit D, the base rental
payments under each Credit Lease are equal to or greater
than the payments due under the Mortgage Loan Documents
executed in connection with the related Credit Tenant
Loan and are payable without notice or demand, and
without setoff, counterclaim, recoupment, abatement,
reduction or defense and, subject to the rights of the
Tenant to terminate the Credit Lease or offset, xxxxx,
suspend or otherwise diminish any amounts payable by the
Tenant under the Credit Lease;
(B) (1) the obligations of the Tenant under each Credit
Lease, including, but not limited to, the obligation of
the Tenant to pay fixed and additional rent, are not
affected by reason of any damage to or destruction of
any portion of the related Credit Tenant Property, any
taking of such Credit Tenant Property or any part
thereof, by condemnation or otherwise or any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the Tenant's
use, occupancy or enjoyment of such Credit Tenant
Property, (2) with respect to each Credit Lease listed
on Schedule I hereto, a Lease Enhancement Policy has
been obtained or (3) with respect to condemnation, the
Tenant is required to make a rejectable purchase offer
for a purchase price that is greater than the then
outstanding principal balance secured by the Mortgage;
(C) except as set forth in Exhibit D, every obligation
associated with managing, owning, developing and
operating the Credit Tenant Property, including, but not
limited to, the costs associated with utilities, taxes,
insurance, capital and structural improvements,
maintenance and repairs is an obligation of the Tenant;
(D) except as set forth in Exhibit D, no Mortgagor has any
monetary obligations under any Credit Lease that have
not been met, or any material nonmonetary obligations
under any Credit Lease the breach of which would result
in either the abatement of rent, a right of setoff or
the termination of the related Credit Lease;
25
(E) no Tenant can terminate any Credit Lease for any reason
(except for a default by the related Mortgagor under the
Credit Lease) prior to the payment in full of (1) the
principal balance of the related Credit Tenant Loan, (2)
all accrued and unpaid interest on such Credit Tenant
Loan and (3) any other sums due and payable under such
Credit Tenant Loan or, if a Tenant can terminate any
Credit Lease as a result of a casualty or condemnation,
a Lease Enhancement Policy has been obtained; or if a
Tenant can terminate the Credit Lease with respect to a
condemnation, the Tenant must make a rejectable purchase
offer for a purchase price that is greater than the then
outstanding principal balance secured by the Mortgage;
(F) if a Tenant assigns its Credit Lease or sublets the
related Credit Tenant Property, such Tenant remains
primarily obligated under such Credit Lease;
(G) each Tenant has agreed to indemnify the related landlord
from any claims of any nature (1) to which such landlord
is subject because of landlord's estate in the leased
property or (2) arising from (I) injury to or death of
any person or damage to or loss of property on the
related Credit Tenant Property or connected with the
use, condition or occupancy of such Credit Tenant
Property, (II) Tenant's violation of the related Credit
Lease, (III) any act or omission of Tenant or (IV) any
environmental or hazardous material affecting the
related property created by the Tenant;
(H) if the obligations of the Tenant under any Credit Lease
are guaranteed by a guarantor pursuant to a guaranty,
the guaranty states that it represents the unconditional
obligation of the guarantor and is a guarantee of
payment, not merely of collection;
(I) to the Mortgage Loan Seller's knowledge, each Credit
Lease contains customary and enforceable provisions
which render the rights and remedies of the lessor
thereunder adequate for the enforcement and satisfaction
of the lessor's rights thereunder;
(J) to the Mortgage Loan Seller's knowledge, in reliance on
a Tenant estoppel certificate and representations made
by the Tenant under the Credit Lease or representations
made by the related Mortgagor under the Mortgage Loan
Documents, as of the date of origination of each Credit
Tenant Loan (1) each Credit Lease was in full force and
effect, and no default by the related Mortgagor or any
Tenant has occurred under the Credit Lease, nor is there
any existing condition which, but for the passage of
time or the giving of notice, or both, would result in a
default under the terms of the Credit Lease, (2) none of
the terms of the related Credit Lease have been
impaired, waived, altered or modified in any respect
(except as described in the related Tenant
26
estoppel), (3) no Tenant has been released, in whole or
in part, from its obligations under the related Credit
Lease, (4) there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to any
Credit Lease, nor will the operation of any of the terms
of any Credit Lease, or the exercise of any rights
thereunder, render the Credit Lease unenforceable in
whole or in part, or subject it to any right of
rescission, offset, abatement, diminution, defense or
counterclaim and no such right of rescission, offset,
abatement, diminution, defense or counterclaim has been
asserted with respect thereto and (5) each Credit Lease
has a term ending on or after the Maturity Date (or
Anticipated Repayment Date) of the related Credit Tenant
Loan;
(K) except as set forth in Exhibit D, to the Mortgage Loan
Seller's knowledge, the related Credit Tenant Property
is not subject to any lease other than the related
Credit Lease, no Person has any possessory interest in,
or right to occupy, such Credit Tenant Property except
under and pursuant to such Credit Lease, and the related
Credit Tenant or an affiliate is in occupancy of such
Credit Tenant Property;
(L) the Mortgage Loan Seller is entitled to notice of any
event of default from the Tenant under a Credit Lease;
(M) each Tenant under a Credit Lease is required to make all
rental payments directly to the Mortgage Loan Seller,
its successors and assignees under the related Credit
Tenant Loan;
(N) each Credit Tenant Loan provides that the related Credit
Lease cannot be modified without the consent of the
holder of the Mortgage Loan thereunder;
(O) except as set forth in Exhibit D, either (1) each Credit
Tenant Loan fully amortizes over its original term and
there is no "balloon" payment due under the Credit
Tenant Loan or (2) a Residual Value Policy has been
obtained with respect to such Credit Tenant Loan;
(P) the related Credit Tenant Property has a permanent
certificate of occupancy (or its equivalent in
jurisdictions that do not provide for the issuance of
certificates of occupancy) and the Tenant has commenced
making lease payments.
(Q) each Tenant has delivered an estoppel verifying the
rents and terms of the related lease, acknowledging that
no rent has been paid in advance, and an estoppel and/or
a subordination and nondisturbance agreement agreeing to
attorn to the holder of the Mortgage Loan.
(lii) Residual Value and Lease Enhancement Insurance Policy With
Respect to Credit Tenant Loans. With respect to any Credit
Tenant Loan for which a
27
Residual Value Policy or a Lease Enhancement Policy
(collectively, the "Policies") has been obtained, and which
are identified on Exhibit D attached hereto:
(A) Each Credit Tenant Loan in connection with which the
related Credit Lease may be terminated upon the
occurrence of a casualty or condemnation has a
noncancellable Lease Enhancement Policy from Chubb
Custom Insurance Company ("Chubb") or Lexington
Insurance Company ("Lexington"). The Chubb Lease
Enhancement Policy in effect for each related Credit
Tenant Loan is the "7/98" version. The Lexington Lease
Enhancement Policy in effect for each related Credit
Tenant Loan was issued in 1998 and the policy number is
63241 (11-95).
(B) Each Credit Tenant Loan in connection with which the
related Credit Lease will have a balloon payment due at
maturity has a non-cancellable Residual Value Policy
from R.V.I. American Insurance Company ("RVI") or
Financial Structures Limited ("FSL"). The RVI Residual
Value Policy in effect for each related Credit Tenant
Loan is the "Single 1.1" policy and the FSL Residual
Value Policy in effect for each related Credit Tenant
Loan was issued in 1998.
(C) The Trustee and its assigns are designated as the loss
payee under each related Policy. All claims proceeds are
payable to the loss payee.
(D) Payment under each Policy will be made at least within
15 days of notification of a claim.
(E) The premium for each Policy has been paid in full as of
the Policy effective date for the related Policy and the
Policy cannot be terminated prior to the termination
date.
(F) The effective date for each Policy with respect to each
Credit Tenant Loan is on or prior to the Closing Date.
(G) The termination date for each Policy with respect to
each Credit Tenant Loan is the date upon which the
outstanding principal balance of the Credit Tenant Loan
is reduced to zero.
(H) The insured amount for each such Policy is what the
applicable provider will pay to the loss payee upon
notification of a claim and is at least equal to the
outstanding principal balance of the related Mortgage
Note at the time the claim is made plus all accrued
interest.
(I) The Policy cannot be amended without the prior written
consent of the Trustee.
(liii) ARD Loans. If such Mortgage Loan is an ARD Loan it provides
that:
28
(A) its Mortgage Rate will increase by no more than two
percentage points from and after its Anticipated
Repayment Date;
(B) its Anticipated Repayment Date is not less than seven
years following the origination of such Mortgage Loan;
(C) (1) on the Closing Date, each ARD Loan will have a
lockbox in place, and (2) each related Mortgagor has
entered into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited
directly into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property that
is applied to amortize an ARD Loan following its
Anticipated Repayment Date shall, to the extent such net
cash flow is in excess of the monthly payment payable
therefrom, be net of budgeted capital expenditures and
capital expenditures that may be approved by the
Servicer in accordance with the terms of the Pooling and
Servicing Agreement.
(E) each ARD Loan is being amortized as of the Cut-off Date,
and is not currently subject to an interest-only period;
(F) the holder of each ARD Loan may not exercise default
remedies if Mortgagor pays scheduled principal and
interest (at the related Mortgage Rate);
(G) The property manager cannot be removed for the sole
reason that the ARD Loan continues to be outstanding
after its Anticipated Repayment Date.
(liv) Ground Leases. With respect to any Mortgage Loan where all
or a material portion of the estate of the related Mortgagor
therein is a leasehold estate, based upon the terms of the
ground lease and any estoppel received from the ground
lessor, the Mortgage Loan Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits
the interest of the lessee to be encumbered by the
related Mortgage and does not restrict the use of the
related Mortgaged Property by such lessee or its
successors or assigns in a manner that would adversely
affect the security provided by the related Mortgage. To
the Mortgage Loan Seller's knowledge, there has been no
material change in the terms of the ground lease since
its recordation, except by any written instruments which
are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in a
writing included in the related Mortgage File that the
ground lease may not be amended, modified, canceled or
terminated without the prior written consent of
29
the Mortgage Loan Seller and its successors and assigns
unless the holder of the Mortgage Loan fails to cure a
Mortgagor ground lease default after applicable notice
and cure periods;
(C) The ground lease has an original term (or an original
term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will be
enforceable, by the Mortgage Loan Seller) that extends
not less than 10 years beyond the Maturity Date (or
Anticipated Repayment Date) of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding
commitment therefor) obtained by the Mortgage Loan
Seller, the ground lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the
lien of the Mortgage (other than any indebtedness
described in clauses (xiv), (xv) and (xxiv) above and
liens that encumber the ground lessor's fee interest);
(E) The ground lease is assignable to the Mortgage Loan
Seller and its successors and assigns under the related
leasehold estate without the consent of the lessor
thereunder , and in the event that such ground lease is
so assigned, it is further assignable by the Depositor
and its successors and assigns upon notice to, but
without a need to obtain the consent of the lessor;
(F) As of the closing date of the related Mortgage Loan, the
ground lease is in full force and effect, the Mortgage
Loan Seller has received no notice that any default
beyond applicable notice and grace periods has occurred,
and there is no existing condition which, but for the
passage of time or giving of notice, would result in a
default under the terms of the ground lease;
(G) 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 Mortgage Loan Seller
or its assignee and pursuant to such agreement, no
notice given thereunder is effective against the
Mortgage Loan Seller unless a copy has been given to the
Mortgage Loan Seller in the manner prescribed in the
ground lease or ancillary agreement;
(H) A Mortgage Loan Seller or its assignee is permitted a
reasonable opportunity (including, where necessary,
sufficient time to gain possession of the interest of
the lessee under the ground lease through legal
proceedings, or to take other action so long as the
Mortgage Loan Seller or its assignee is proceeding
diligently) to cure any default under the ground lease
which is curable after the receipt of notice of any
default before the lessor may terminate the ground
lease.
30
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by an institutional investor. The lessor is
not permitted to disturb the possession, interest or
quiet enjoyment of any subtenant of the lessee in the
relevant portion of the Mortgaged Property subject to
the ground lease for any reason, or in any manner, which
would materially and adversely affect the security
provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, 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 Mortgage Loan Seller or a
trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration
progresses, or to the payment of the outstanding
principal balance of the Mortgage Loan, together with
any accrued interest, except that in the case of
condemnation awards, the ground lessor may be entitled
to a portion of such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or
condemnation award in respect of a total or
substantially total loss or taking to the related
Mortgaged Property will be applied first to the payment
of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as
provided by applicable law or in cases where a different
allocation would not be viewed as commercially
unreasonable by any institutional investor, taking into
account the relative duration of the ground lease and
the related Mortgage and the ratio of the market value
of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan). Until the
principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground
lease without the prior written consent of the Mortgage
Loan Seller or its assignee as a result of any casualty
loss or partial condemnation, except to provide for an
abatement of the rent or otherwise in accordance with
the standard provisions of the related Mortgage;
(L) Provided that the Mortgage Loan Seller cures any
defaults which are susceptible of being cured, the
lessor has agreed to enter into a new lease with the
Mortgage Loan Seller upon termination of the ground
lease for any reason, including rejection of the ground
lease in a bankruptcy proceeding.
(lv) Bondable Leases. With respect to each Credit Tenant Loan
identified on Exhibit E as being secured by a Mortgaged
Property with one or more Bondable Leases (which are
identified in Exhibit E attached hereto) each Bondable Lease
is subject to the following conditions:
31
(A) The rental payments under the related Bondable Lease are
equal to or greater than the payments due under the
related Mortgage Note and Mortgage, and are payable
without notice or demand, and without setoff,
counterclaim recoupment, abatement, reduction or
defense.
(B) There is no right of rescission, offset, abatement,
diminution, defense or counterclaim to any Bondable
Lease, in whole or in part, and no such right of
rescission, offset, abatement, diminution, defense or
counterclaim has been asserted with respect thereto;
(C) The obligations of the Tenant under the related Bondable
Lease, including, but not limited to, the obligation of
the Tenant to pay fixed and additional rent, are not
affected by reason of: (w) any damage to or destruction
of any portion of the related Credit Tenant Property;
(x) taking of the related Credit Tenant Property or any
part thereof by condemnation or otherwise; (y) any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the Tenant's
use, occupancy or enjoyment of the related Credit Tenant
Property or (z) with respect to condemnation, the Tenant
is required to make a rejectable purchase offer for a
purchase price that is greater than the outstanding
principal balance of the Mortgage Loan.
(D) The landlord does not have any monetary obligations
under the related Bondable Lease, and every monetary
obligation associated with the managing, owning,
developing and operating the related Credit Tenant
Property, including, but not limited to, the costs
associated with utilities, taxes, insurance, maintenance
and repairs is an obligation of the Tenant.
(E) The landlord does not have nonmonetary obligation xxxxxx
the related lease, except for the delivery of possession
of the related leased property.
(F) The landlord has not made any representation or warranty
under the related lease that would impose any monetary
obligation upon the landlord or result in the
termination of the related lease.
(G) The Tenant cannot terminate the related Bondable Lease
for any reason other than condemnation of the related
Mortgaged Property, prior to the payment in full of:
(1) The principal balance of the Mortgage Loan;
(2) All accrued and unpaid interest on the Mortgage
Loan; and
(3) Any other sums due and payable under the Mortgage
Loan, as of termination date, which date is a rent
payment date, except for a default by the landlord
under the related lease.
32
(H) The Tenant has agreed to indemnify the landlord from any
claims of any nature:
(1) To which the landlord is subject because of the
landlord's estate in the related Credit Tenant
Property, or
(2) Arising from
(I) Injury to or death of any person or damage to
or loss of property on the related leased
property or connected with the use, condition
or occupancy o the related leased property,
(II) The Tenant's violation of the related lease,
(III) Any act or omission of the Tenant or
(IV) Any environmental or hazardous material
affecting the related property.
(lvi) Mortgage Loans Not Originated by Mortgage Loan Seller. With
respect to each Mortgage Loan originated by a correspondent
of the Mortgage Loan Seller and purchased or "table funded"
by the Mortgage Loan Seller in connection with a
correspondent relationship with such originator, except as
set forth on Exhibit D attached hereto:
(A) such Mortgage Loan was underwritten substantially in
accordance with standards established by the Mortgage
Loan Seller, (which standards are in all material
respects the same as the underwriting standards for
Mortgage Loans originated by the Mortgage Loan Seller);
(B) such Mortgage Loan was originated pursuant to an
ongoing, standing relationship with the Mortgage Loan
Seller;
(C) the closing documents (which include assignment
documents executed by the Mortgage Loan originator in
favor of the Mortgage Loan Seller at the time of the
closing of the Mortgage Loan) for the Mortgage Loan were
prepared in substantial compliance with forms approved
by the Mortgage Loan Seller, and reflect the Mortgage
Loan Seller as the successor and assign to the Mortgage
Loan originator; and
(D) such Mortgage Loan either was actually funded by and
assigned to the Mortgage Loan Seller at the closing
thereof, or was funded initially by the Mortgage Loan
originator at the closing thereof and then acquired by
the Mortgage Loan Seller from such Mortgage Loan
originator pursuant to its ongoing, standing
relationship with the Mortgage Loan Seller.
33
(lvii) Origination. Each Mortgage Loan originated by the Mortgage
Loan Seller was underwritten consistent in all material
respects with the standards of the Mortgage Loan Seller as
then in effect and each Mortgage Loan purchased by the
Mortgage Loan Seller from a third-party originator was
underwritten consistent in all material respects with
prudent commercial mortgage conduit lending standards.
(lviii) Waivers. The Mortgage Loan Seller and, to the Mortgage Loan
Seller's knowledge, any prior holder of the Mortgage Loan
has not waived any default, breach, violation or event of
acceleration under the related Mortgage or Mortgage Note.
(lix) Qualification. To the extent required under applicable law
as of the Closing Date and necessary for the enforceability
or collectibility 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 held the Mortgage Loan.
3.3. Remedies for Breach of Certain Representations and Warranties. (a)
It is understood and agreed that the representations and warranties set forth
herein shall survive the sale of the Mortgage Loans to the Purchaser,
notwithstanding any restrictive or qualified endorsement on the Mortgage Notes
and notwithstanding subsequent termination of this Agreement or the Pooling and
Servicing Agreement, and shall inure to the benefit of the Purchaser, and the
Trustee as the transferee of the Purchaser, notwithstanding (1) any restrictive
or qualified endorsement on any Mortgage Note, assignment of Mortgage,
Assignment of Leases, Rents and Profits or reassignments thereof (2) any
termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
do not cover any mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage Loan
Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced prior to the delivery thereof
(such Mortgage Loan, a "Defective Document Mortgage Loan") or (ii) a breach of
any of the foregoing representations and warranties (other than the
representations and warranties set forth in Sections 3.1(a) and 3.2(a)) (a
"Breach") which, in the case of either clause (i) or (ii), materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the party discovering (x) that a Mortgage Loan is a
Defective Document Mortgage Loan or (y) the existence of a Breach (any such
Mortgage Loan as described in the preceding clause (x) or so affected by a
Breach as described in clause (y), a "Defective Mortgage Loan") shall give
prompt written notice thereof to the other parties. Within 90 days of the
earlier of its discovery or its receipt of notice of any such Defective Mortgage
Loan, the Mortgage Loan Seller shall at its option either (i) promptly cure such
defect or Breach in all material respects; provided, however, that the Mortgage
Loan Seller will have an additional 90-day period to cure such defect or Breach
if it is diligently proceeding with such cure, and has delivered to the Trustee,
the Servicer
34
and each Rating Agency an officer's certificate with all relevant correspondence
and communication in the possession of the Mortgage Loan Seller as of the date
thereof relating to such Defect or Breach that describes the reasons that a cure
was not effected within the first 90-day cure period and the actions it proposes
to take to effect such cure and which states that it anticipates such cure will
be effected within the additional 90-day period or (ii) repurchase each
Defective Mortgage Loan at the Repurchase Price for such Mortgage Loan. The
payment of the Repurchase Price with respect to any Mortgage Loans repurchased
by the Mortgage Loan Seller shall be paid in accordance with the directions of
the owners of such Mortgage Loans. It is understood and agreed that the
obligations of the Mortgage Loan Seller set forth in this Section 3.3(b) to cure
or repurchase a Defective Mortgage Loan constitute the sole remedies available
to the Purchaser and its successors and assigns respecting a Defective Mortgage
Loan. Upon any such repurchase of a Mortgage Loan by the Mortgage Loan Seller,
the Purchaser shall execute and deliver (or shall cause the Trustee to execute
and deliver) such instruments of transfer or assignment presented to it by the
Mortgage Loan Seller, in each case without recourse, as shall be necessary to
vest in the Mortgage Loan Seller the legal and beneficial ownership of such
Mortgage Loan (including any property acquired in respect thereof or proceeds of
any insurance policy with respect thereto) and the related rights under each
agreement which were assigned pursuant to Section 3.7 hereof, and shall deliver
the related Mortgage File to the Mortgage Loan Seller or its designee after
receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no provision of
this Agreement shall be interpreted as limiting (or otherwise be deemed to
limit) the Purchaser's right to pursue any remedies it may have under this
Agreement, in equity or at law, in connection with any breach by the Mortgage
Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the assignment by the
Purchaser to the Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Certificateholders, of the representations and warranties
contained herein and of the obligation of the Mortgage Loan Seller to cure or
repurchase Defective Mortgage Loans pursuant to this Section. The Trustee or its
designee may enforce such obligation as provided in Section 5.3 hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees that,
pursuant to Section 2.03(e) of the Pooling and Servicing Agreement, the Servicer
and the Special Servicer (in the case of Specially Serviced Mortgage Loans) have
the right, for the benefit of the Certificateholders, to enforce the obligations
of the Mortgage Loan Seller under this Section 3.3. The Servicer and the Special
Servicer, as the case may be, shall be reimbursed for the reasonable costs of
such enforcement from a specific recovery of costs, expenses or attorneys' fees
against the applicable Mortgage Loan Seller first, from a specific recovery of
costs, expenses or attorneys' fees against the Mortgage Loan Seller ordered or
awarded pursuant to an adjudication and second, from the Purchase Price (as
defined in the Pooling and Servicing Agreement) in the manner contemplated by
Section 2.03(e) of the Pooling and Servicing Agreement.
3.4. Opinions of Counsel. The Mortgage Loan Seller hereby covenants to
the Purchaser to, simultaneously with the execution hereof, deliver or cause to
be delivered to the Purchaser (a) opinions of counsel as to various corporate
matters in form satisfactory to the Purchaser (it being agreed that the opinion
shall expressly provide that the Trustee and the Fiscal
35
Agent shall be entitled to rely on such opinions); and (b) opinions of counsel
for the Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel,
and each Rating Agency, as to such matters as shall be required for the
assignment of the ratings of the Certificates and otherwise as required by the
Certificate Purchase Agreement and the Underwriting Agreement (it being agreed
that such opinions or appropriate reliance letters shall expressly provide that
the Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to furnish
any and all information, documents, certificates, letters or opinions with
respect to the Mortgage Loans reasonably requested by the Purchaser in order to
perform any of its obligations or satisfy any of the conditions on its part to
be performed or satisfied pursuant to the Certificate Purchase Agreement and the
Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The Mortgage Loan
Seller agrees to execute and deliver such instruments and take such actions as
the Purchaser may, from time to time, reasonably request in order to effectuate
the purpose and to carry out the terms of this Agreement and to effectuate the
securitization of the Mortgage Loans pursuant to the Pooling and Servicing
Agreement and to carry out its obligations under the Pooling and Servicing
Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby grants, sells, transfers, assigns, delivers, sets-over and
conveys to the Purchaser all the right, title and interest of the Mortgage Loan
Seller in, to and under the Mortgage Loans pursuant to each agreement between
the Mortgage Loan Seller and the originators of the Mortgage Loans (where such
originators are Persons other than the Mortgage Loan Seller) pursuant to which
the Mortgage Loan Seller acquired rights in such Mortgage Loan (which agreements
are set forth on Schedule I attached hereto), including, without limitation, all
of the Mortgage Loan Seller's right, title and interest in any claims, insurance
policies, escrow accounts, demands, causes of action and any other collateral
arising out of and/or executed and/or delivered in or to, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Mortgage Loans, without recourse, representation or
warranty except as set forth herein.
[End of Article III]
36
ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and acceptable to
the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage File shall be delivered to and held by the Trustee on behalf
of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as Exhibit A;
(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 _______________, counsel to the Mortgage Loan
Seller, substantially in the form attached hereto as Exhibit C;
(v) such other opinions of counsel as the Mortgage Loan Seller, the
Depositor or the Underwriters may require;
(vi) the Xxxxxxx Xxxxx Mortgage Loan Purchase and Sale Agreement duly
executed and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Xxxxx'x Investors
Services, Inc. ("Moody's") and Xxxxx IBCA, Inc. ("Fitch IBCA") set forth in
Clause (viii) of this Section 4.1(b);
(viii) Letters from Moody's and Fitch IBCA showing the following
ratings: for the Class A-1 Certificates, a "Aaa" rating from Xxxxx'x and a
"AAA" rating from Fitch IBCA; for the Class A-2 Certificates, a "Aaa"
rating from Xxxxx'x and a "AAA" rating from Fitch IBCA; for the Class X
Certificates, a "Aaa" rating from Xxxxx'x and a "AAA" rating from Fitch
IBCA; for the Class B Certificates, a "Aa2" rating from
37
Xxxxx'x and a "AA" rating from Fitch IBCA; for the Class C Certificates, a
"A2" rating from Xxxxx'x and a "A" rating from Fitch IBCA; for the Class D
Certificates, a "Baa2" rating from Moody's and a "BBB" rating from Fitch
IBCA; for the Class E Certificates, a "Baa3" rating from Xxxxx'x and a
"BBB-" rating from Fitch IBCA; for the Class F Certificates, a "Ba2" rating
from Moody's; for the Class G Certificates, a "B2" rating from Xxxxx'x; for
the Class H Certificates, a "B3" rating from Xxxxx'x.
(ix) a letter from the independent accounting firm of
PriceWaterhouseCoopers, LLC in form satisfactory to the Purchaser, relating
to certain information regarding the Mortgage Loans as set forth in the
Prospectus and the Prospectus Supplement and certain information regarding
the Certificates as set forth in the Prospectus and the Prospectus
Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The obligations of
the Mortgage Loan Seller under this Agreement shall be subject to the
satisfaction, on the Closing Date, to the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
[End of Article IV]
38
ARTICLE V.
MISCELLANEOUS
5.1. Costs. (a) The Purchaser shall pay all expenses incidental to the
performance of its obligations under this Agreement, including without
limitation (i) fees for title policy endorsements and continuations or any
recordation expenses for all documents to be recorded, including without
limitation, the assignments of the Mortgages and the assignments of the
Assignments of Leases and any other documentation requested by the Purchaser as
further assurance of the transactions contemplated herein, (ii) the expenses of
preparing, printing and reproducing (A) the Memorandum with respect to the
Privately Placed Certificates and the Prospectus Supplement with respect to the
Publicly Offered Certificates, (B) the Purchase Agreement, (C) the Pooling and
Servicing Agreement and (D) the Certificates, (iii) the cost of delivering the
Privately Placed Certificates to the office of the Placement Agent or the
Purchaser, as applicable, insured to the satisfaction of the Placement Agent or
the Purchaser, as applicable and (iv) the cost of delivering the Publicly
Offered Certificates to the office of the Underwriter.
(b) The Mortgage Loan Seller shall pay or cause to be paid to the
Purchaser its Allocable Share of the Purchaser's out-of-pocket expenses
allocable to the Mortgage Loans, including, but not limited to the Purchaser's
attorneys' fees and expenses.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser, the directors, officers,
employees and agents of the Purchaser, and each person who controls the
Purchaser 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 (in preliminary or
final form), or in any 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,
in the light of the circumstances under which they were made, not misleading,
but only to the extent such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon any information provided by
or on behalf of the Mortgage Loan Seller to the Purchaser with respect to the
Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale or such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained
39
in such Preliminary Prospectus Supplement which was the basis of any such claim
was corrected in the Prospectus Supplement and provided, further, that the
indemnification provided by this Section 5.2 shall not apply to the extent that
such untrue statement or omission was made as a result of an error in any
aggregation (other than an aggregation made by the Mortgage Loan Seller or an
aggregation contained in tabular information provided by the Mortgage Loan
Seller) of, the information regarding the Mortgage Loans, the related Mortgagor
and the related Mortgaged Properties with comparable information relating to
other mortgage loans conveyed by other mortgage loan sellers. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have. For all purposes of this Agreement, and notwithstanding
anything herein contained to the contrary, the Mortgage Loan Seller Information
includes, and is limited to, (i) the representations and warranties of the
Mortgage Loan Seller set forth in Section 2 herein, (ii) summaries of the
individual Mortgage Loans and any letters, certifications and other materials
furnished to the Purchaser by the Mortgage Loan Seller relating to the Mortgage
Loans, (iii) reports of environmental assessments of the related Mortgaged
Properties, (iv) reports of site inspections of the related Mortgaged
Properties, (v) all information and documentation relating to the Mortgage Loans
and included in the investor and Rating Agencies due diligence files and any
documents or information relating to the Mortgage Loans and provided by the
Mortgage Loan Seller or any of its affiliates to potential investors, including
but not limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers and the Mortgage Loan Seller set forth in the Prospectus and in any
amendment thereof or supplement thereto, and (vii) any computer diskettes,
computer tapes and/or other electronic media containing (A) the information on
the Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided to the Depositor or any Underwriter and used in preparing Computational
Materials (as such term is defined in the no-action letter issued by the staff
of the Securities and Exchange Commission (the "SEC"), dated May 20, 1994 to
Xxxxxx, Peabody Acceptance Corporation I), Collateral Term Sheets, ABS Term
Sheets, and/or Structural Term Sheets (as such terms are defined in the
no-action letter issued by the SEC, dated February 17, 1995 to the Public
Securities Association.
(b) The Purchaser 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 (in preliminary or final form), or in any 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 the such untrue
statement, alleged untrue statement, omission or alleged omission is based upon
the Mortgage Loan Seller Information, and the Purchaser shall reimburse each
such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage,
40
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
5.2 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 5.2, 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 5.2, 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 5.2. 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 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 Purchaser in the case of
subsection (a), representing the indemnified parties under subsection (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 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 5.2 shall for
any reason be unavailable in accordance with its terms to an indemnified party
under this Section 5.2, then the Mortgage Loan Seller and the Purchaser 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 (i) the relative
benefits received by the Mortgage Loan Seller on the one hand and the Purchaser
on the other from the purchase and sale of the Mortgage Loans and the offering
of the Certificates and (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as
41
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also to reflect the relative fault of the Mortgage Loan Seller on
the one hand and the Purchaser 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 benefits received
by the Purchaser on the one hand and the Mortgage Loan Seller on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Certificates (before deducting expenses but net of underwriting
discounts and commissions) received by the Purchaser bear to the total net
proceeds received by the Mortgage Loan Seller with respect to the sale of the
Mortgage Loans (before deducting expenses). The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Mortgage Loan Seller or
the Purchaser 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 Purchaser 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 0000
Xxx) shall be entitled to contribution from any person who was not also guilty
of such fraudulent misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit of, and may be enforced by or on behalf of, the Trustee and
the Holders of Certificates to the same extent that the Purchaser has rights
against the Mortgage Loan Seller under this Agreement in respect of
representations, warranties and agreements made by the Mortgage Loan Seller
herein, and all such representations and warranties shall survive delivery of
the Mortgage Files to the Trustee until the termination of the Pooling and
Servicing Agreement. Section 5.2 of this Agreement shall survive delivery of the
Mortgage Files to the Trustee and remain in full force and effect after the
termination or cancellation of this Agreement.
5.4. Successors and Assigns. 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 in Section 5.3 hereof.
5.5. Governing Law. 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), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
5.6. Modifications. (a) Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought.
42
(b) This Agreement may not be changed in any manner which would have a
material adverse effect on Holders of Certificates without the prior written
consent of the Trustee. The Trustee shall be protected in consenting to any such
change to the same extent provided in the Pooling and Servicing Agreement.
(c) 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.
5.7. Notices. All communications hereunder shall be in writing and
effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at PaineWebber
Mortgage Acceptance Corporation V, 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, telecopy number: (212)
713-8607, with a copy to O'Melveny & Xxxxx LLP, 000 X. 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, Esq., telecopy number: (000) 000-0000;
or, if sent to the Mortgage Loan Seller, will be mailed, delivered or
transmitted by facsimile and confirmed to it at Xxxxx Xxxxxx Real Estate
Securities Inc., 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxx, telecopy number: (000) 000-0000, with a copy
to O'Melveny & Xxxxx LLP, 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxxx, Esq., telecopy number: (000) 000-0000.
5.8. Severability. If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid, then, to the extent permitted by applicable law, such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
5.9. Confirmation of Intent. It is the express intent of the parties
hereto that the conveyance contemplated by this Agreement be, and be treated for
all purposes as, a sale by the Mortgage Loan Seller of all the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans. It is, further,
not the intention of the parties that such conveyance be deemed a pledge of the
Mortgage Loans by the Mortgage Loan Seller to secure a debt or other obligation
of the Mortgage Loan Seller. However, in the event that, notwithstanding the
intent of the parties, the Mortgage Loans are held to continue to be property of
the Mortgage Loan Seller then (a) this Agreement shall also be deemed to be a
security agreement under applicable law; (b) the transfer of the Mortgage Loans
provided for herein shall be deemed to be a grant by the Mortgage Loan Seller to
the Purchaser of a first priority security interest in all of the Mortgage Loan
Seller's right, title and interest in and to the Mortgage Loans and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms thereof
and all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property; (c) the possession by the
Purchaser or any successor thereto of the related Notes and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the New York
Uniform Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction; and (d) notifications to Persons holding such property, and
acknowledgments, receipts or confirmations from Persons holding such property,
shall be deemed notifications to, or acknowledgments, receipts or confirmations
43
from, financial intermediaries, bailees or agents (as applicable) of the
Purchaser or any successor thereto for the purpose of perfecting such security
interest under applicable law. Any assignment of the interest of the Purchaser
pursuant to any provision hereof shall also be deemed to be an assignment of any
security interest created hereby.
[Signatures Appear on Next Page]
44
IN WITNESS WHEREOF, the Purchaser 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.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
as Purchaser
By: /s/ Xxxxxx X. Xxxxx
___________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
as Mortgage Loan Seller
By: /s/ Xxxxxx X. Xxxxx
___________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
S-1
EXHIBIT A MORTGAGE LOAN SCHEDULE EXHIBIT A
LOAN
ID PROPERTY NAME PROPERTY TYPE ORIGINATOR ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
PW - 4817 Xxxx Valley Executive Plaza Office PWREI 11350 XxXxxxxxx Xx.
PW - 4818 The Galleria Mixed PWREI 1407-1447 York Road
PW - 3825 Xxxxxxx Xxxxxxx, Inc. CTL PWREI 317 and 1000 Lake Xxxxxxxxx Drive
PW - 4819 Timonium Corporate Center Office PWREI 0000 Xxxxxxx Xxxx
XX - 0000 Xxxxxx Xxxxx Xxxxxxxxxx XXXXX 00000 and 12025 Tech Center Drive
PW - 6093 Concourse I & II Shopping Center Retail PWREI 820 & 827 Xxxxxx Drive
PW - 7215 Market Center East Retail PWREI 11130 Lomas Blvd.
PW - 1696 Kmart - Xxxxx CTL PWREI Road 591 & State Rd. #2
PW - 3346 INS Regional Office Industrial ARIES 0000 Xxxxxxx Xxxx
PW - 3879 Regal Cinemas, Inc. CTL PWREI 3301 Plank Road
PW - 7009 The Patriots Apartments Multifamily PWREI 0000 Xxxxx Xxxxx Xxxx
PW - 3000 Peace Arch Factory Retail XXXX XXXX Interstate 5 & Birch Bay- Linden Road
PW - 6542 Rockport Apartments Multifamily PWREI 8500 Xxxxx
XX - 0000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx Retail ARIES 0000-0000 Xxxx Xxxxxx
PW - 2034 000-000 Xxxx Xxxxxxx Xxxx Retail PWREI 000-000 Xxxx Xxxxxxx Xxxx
XX - 0000 Xxxxxxxxxxx Apartments Multifamily PWREI 9001 S. Braeswood
PW - 5651 Best Western Hershey Hospitality ARIES NE Corner of Xx. 000 & Xxxx Xxx
XX - 0000 Xxxxxxxxxx Xxxxxxx Multifamily PWREI 1260-1280 X. Xxxxxxxxxx Avenue
PW - 2365 Xxxxxxxx Plaza Industrial XXXX XXXX Xxxxxxxx between 0xx xxx 0xx Xxxxxxx
XX - 0000 Xxxxxxxx Portfolio Industrial PWREI 0000-0000 Xxxx Xxxxxxxxxx Xxxxx;
503-519 and 000-000 Xxxxx Xxxxxxxx Xxxxx;
000-000 Xxxxx Xxxxx Xxxx
PW - 4149 Manor Parkway Industrial PWREI 10, 12A & 00X Xxxxx Xxxx.
XX - 0000 Xxxx Xxxxxxxxx Apartments Multifamily ARIES SWQ of XX 00 & Xxx Xxxx
XX - 0000 Xxxxxxx Transit, Inc. CTL PWREI 1200 X. Xxxxxx X. Xxxx Blvd.
PW - 6545 Cedar Branch Apartments Multifamily PWREI 1217 Xxxxxxx
XX - 0000X Xxxxxxx Xxxxx Xxxxxxx MHP Mobile Home Park 0000 Xxxxxxx Xxxxxx
XX - 0000X Xxxxxx Xxxx Xxxxxxx MHP Mobile Home Park 0000 Xxxx Xxxxxxxx Xxxxxx
PW - 0000 Xxxxxxx Xxxxx / Xxxxxx Xxxx Xxxxxxx MHP PWREI
PW - 1890 00 Xxxxxxx Xxxxx Xxxxxxxxxx XXXXX 00 Xxxxxxx Xxxxx
XX - 0000 Xxxxx Xxxxxxxxx Xxxx Industrial PWREI 0000 Xxxx Xxxxx Xxxx
XX - 0000 Xxxxxxx Inn Columbia Hospitality PWREI 0000 Xxxxxxx Xxxxx
XX - 0000X Xxxxxx Bank-Collingswood Retail 000-00 Xxxxxx Xxxxxx
XX - 0000X Summit Bank-Madison Retail 00 Xxxxxxx Xxxxx
XX - 0000X Summit Bank-Springfield Retail 000 Xxxxxx Xxxxxx
XX - 0000X Summit Bank-Edison Retail 00 Xxxxxxxxx Xxxx
XX - 0000X Summit Bank-Plainfield Retail 000-000 Xxxx Xxxxx Xxxxxx
XX - 0000X Summit Bank-Westfield Retail 000 Xxx Xxxxxx
XX - 0000 Summit Bank Portfolio PWREI
PW - 4923 Xxxxxx Xxxxxxx Oceanfront Hospitality PWREI 0000 Xxxxx Xxxxxxxx Xxxxxx
PW - 3441 Loft Building Industrial PWREI 000-000 Xxxx 00xx Xxxxxx
XX - 0000 Xxxx Olympia Mobilodge Mobile Home Park XXXXX 000 Xxxxxxxx Xxxxxx Xxxx
XX - 0000 X.X. Farmers' Market Industrial SUBURBAN 1309& 0000 0xx Xxxxxx
PW - 0000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxx XXXXX 00000-00000 Grand River
PW - 2550 Days Inn Eastgate Hospitality ARIES 5245 West Irlo Xxxxxxx Memorial Hwy
PW - 3397 Executive Square Office Park Office COLLATERAL 4277-4329 Memorial Drive
MORTGAGE
PW - 3086 Comfort Inn & Suites - Orangeburg Hospitality VALUEXPRESS 0000 Xx. Xxxxxxxx Xxxx
XX - 0000 Xxxxxxxxx Clinic Office PWREI 0000 Xxxxxxx Xxxxx Xxxx
XX - 0000 Xxxxxxxxx Apartments Multifamily XXXXX 0000 Xxxxxxxxx
XX - 0000 Xxxxxx Court Office ARIES 000-000 0xx Xxxxxx
XX - 0000 Best Western University Inn Hospitality VALUEXPRESS 0000 Xxxxxxx 00 Xxxx
PW - 3189 Collegiate Apartments Multifamily ARIES 000 Xxxxxx Xxxx
XX - 0000 00 Xxxx 00xx Xxxxxx Mixed PWREI 00 Xxxx 00xx Xxxxxx
XX - 0000 Xxxxxxx Xxxxxxx Quality Inn Hospitality ARIES 0000 Xxxxxxxxx Xxxxxxxxx
PW - 4319 Best Western La Sammana Hospitality VALUEXPRESS 000-X Xxxx Xxxx. Xxxxx
XX - 0000 Pill Box Plaza Retail PWREI 0000 XX 000xx Xxxxxxx
PW - 2358 Post Haste Plaza Retail PWREI 0000-0000 Xxxxxxxx Xxxxxx
PW - 2064 Liberty Square Shopping Center Retail PWREI 0000 XX Xxxxxxx 00X
XX - 0000 Xxxxxx Xxxxx Plaza Retail PWREI SWC Pershing Rd. and Monroe St.
PW - 4709 Hampton Inn- Clarksville Hospitality PWREI 190 Holiday Road
PW - 0000 Xxxxxxxx Xxxxx Xxxxxx XXXXX 0000-0000 College Parkway
PW - 3886 Mako Marine Industrial PWREI 4355 NW 000xx Xxxxxx
XX - 0000 Xxxxx - Xxxx Xxxxxxx CTL PWREI 301 Route 10
PW - 4355 Best Western Regent Inn Hospitality VALUEXPRESS 000 Xxxxxx Xxxx
XX - 0000 Xxxxxxxxx Resort Apartments Multifamily ARIES 0000 Xxxxxx Xxxxxx
XX - 0000X Comfort Inn Hospitality X.X. Xxxxxxx 00/00
XX - 0000X Xxxxxxx Inn Hospitality 000 Xxxxxx Xxxxxx
XX - 0000 Comfort Inn/Rodeway Inn PWREI
PW - 1481 Golden State Warehouse Industrial PWREI 00 Xxxx Xxxxx
XX - 0000 Xxxxxxxx Oaks Apartments Multifamily SUBURBAN 0000 Xxxxxxxx Xxxxxx
PW - 3146 Econolodge - Xxxxxx Hospitality VALUEXPRESS 000 Xxxx Xxxxxxx 80
PW - 3821 Econo Lodge West Hospitality SUBURBAN 0000 Xxxxx Xxxxxx Xxxxxxxxx
XX - 0000 000 Xxxx 00xx Xxxxxx Office PWREI 000 Xxxx 00xx Xxxxxx
XX - 0000 Xxxxx Xxxxxx Office ARIES 0000 Xxxxx Xxxxxx Xxxxxx
PW - 2969 000 Xxxxx Xxxxxx Multifamily PWREI 000 Xxxxx Xxxxxx
XX - 0000 Xxxxxxxxx Court Apartments Multifamily PWREI 0000 Xxxxxx Xxxxxxx
XX - 0000 Xxxxxxxxxx Grandview Office PWREI 00000 X. Xxxxxxxxxx Xxxx.
PW - 4467 Hallmark Motor Inn Hospitality SPARKS 4500 Central Texas Expressway
PW - 2346 Mountainside Crossing Retail PWREI 0000 X. Xxxxxxxx Xxxxxxxxx
PW - 4048 Hard Rock Cafe Retail ARIES 000-000 Xxxxxx Xxxxxx
XX - 0000 Xxxxxx - Xxxx Xxxxx CTL PWREI 7030 Jog Road
PW - 3736 University Commons Apartments Multifamily PWREI 250 University Avenue
PW - 2233 Century Resources Industrial PWREI 0000 Xxxxxxxxx Xxxxx
XX - 0000 Super 8 Phoenix Hospitality SPARKS 0000 Xxxxx 00xx Xxxxxx
PW - 5668 9000 Professional Centre Office ARIES 0000 Xxxxxxxxx 00xx Xxxxx
PW - 3035 Ramada Inn South Hospitality VALUEXPRESS 0000 Xxxxx Xxxx
XX - 0000X Xxxxxxxxx Xxxxxxx Multifamily 0000-0000 Xxxxx Xxxx
XX - 0000X Xxxxxxxxxxxx Townhomes Multifamily 1929-1939 Independence Boulevard
PW - 5994C Residences at Independence Multifamily 1899-1907 Independence Boulevard
PW - 5994 Xxxxxx Xxxxxxxx Properties WEXFORD
PW - 0000 Xxxxxxxxxx Xxxxx Apartments Multifamily PWREI 21-25 Xxxx St/7-11 Washington St.
PW - 3329 Building 210 Industrial PWREI 210 Aspen Airport Business Center
PW - 6314 Gardens Of Sunrise Multifamily WEXFORD 3550 NW 91 Xxxx
XX - 4008 Days Inn South Hospitality VALUEXPRESS 0000 Xxxxx X-00
XX - 0000 Xxxxxxxx Apartments Multifamily PWREI 27662 Xxxxxx Drive
PW - 4762 Comfort Inn Alexandria Hospitality ARIES 0000 Xxxxxxxx Xxxxxxx
XX - 0000 0000-00 Xxxxxxx Xxxxxx Multifamily PWREI 0000-00 Xxxxxxx Xxxxxx
PW - 3463 Superpetz Shopping Center Retail STANDARD 1610 Xxx Xxxxxxxxxx Boulevard
PW - 6021 Mercede Americana Plaza Retail PWREI 0000 Xxxxx Xxxxxxxxxx Xxxxx
PW - 4896 School House Terrace Multifamily VALUEXPRESS 000 X. Xxxxxxxxx Xxxxxx
PW - 3666 Comfort Inn- Byron Hospitality VALUEXPRESS 000 Xxxxxxx Xxxx
XX - 0000 Xxxxxxx Xxxxxxxxxxxxx Industrial PWREI 1601 North Powerline Road
PW - 3901 Wheat First Union Building Office PWREI 00-00 Xxxxx Xxxxxx Xxxxxx
XX - 0000X Vezelay Apartments (Westwood) Multifamily 0000-00 Xxxxxxxx Xxxxxx
XX - 0000X Vezelay Apartments (Xxxxxxxx) Multifamily 0000-00 Xxxxxxxx Xxxxxx
PW - 3563C Vezelay Apartments (XxXxxxx) Multifamily 0000-00 XxXxxxx Xxxxxx
XX - 0000X Vezelay Apartments (Amberwoods) Multifamily 7803-7821 Xxxx Road
PW - 3563 Vezelay Apartments Multifamily PWREI
PW - 3709 Knight's Inn Hospitality PWREI 2942 Lawrenceville Highway
PW - 4553 Comfort Inn Vidalia Hospitality ARIES 0000 Xxxx Xxxxx Xxxxxx
XX - 0000 Xxxxxxx Xxxx Apartments Multifamily WEXFORD 0000 Xxxxxxxx Xxxx.
XX - 0000 Xxxxxxxx Apartments Multifamily PWREI 88 Lake Avenue
PW - 3466 Adobe Inn Hospitality PWREI Xxxxxxx & 8th Street
PW - 0000 Xxxxxxxx Xxxx. Retail PWREI 00-00 Xxxxxxxx Xxxx.
XX - 0000 Xxxxxxxx Xxxxxxx MHP Mobile Home Park PWREI 2075 Xxxxxx Xxxx
PW - 5025 Comfort Inn Clinton Hospitality VALUEXPRESS 000 Xxxxxxx Xxxxxx Xxxxx
XX - 3286 Blue Coral Building Industrial PWREI 1215 Valley Belt Road
PW - 1777 Villager Lodge-Charlotte Hospitality PWREI 0000 Xxxxxxxxx Xxxx.
XX - 0000 Xxxxxxxxx 95 Office PWREI 2700-2750 North 29th Avenue
PW - 6414 Harbour Oaks Apartments Multifamily PWREI 0000 Xxxxxx Xxxx
XX - 0000 Super 8-Baton Rouge Hospitality PWREI 00000 Xxxxxx Xxx.
PW - 2526 New Exchange Office PWREI 1307 West 6th Street
PW - 3076 Travelodge South Hospitality SPARKS 0000 Xxxxxxxxxxxx Xxxx
XX - 0000 Xxxxx 34 Industrial Industrial PWREI 1709 Route 34
PW - 4678 3501 McKinney Retail PWREI 0000 XxXxxxxx
XX - 0000 Xxxxxxx Xxx Abilene Hospitality SPARKS 0000 Xxxx Xxxxxxxxxx 20
PW - 3893 Super 8 Fortuna Hospitality PWREI 1805 Alamar Way
PW - 2443 Park 95 Offices Office PWREI 13540-13632 Xxxx 00xx Xxxxxx
XX - 0000 Xxxxxxx Apartments Multifamily SUBURBAN 0000 Xxxxxxx Xxxxxx
XX - 0000X 000-000 Xxxxxxxxxx Xxxxxx Office 000-000 Xxxxxxxxxx Xxxxxx
XX - 0000X Shell Pointe Apartments Multifamily 00 Xxxxxxxx Xxxxxx
XX - 0000 Xxxxxxxxxx/Xxxxxxxx PWREI
PW - 3616 Exeter House Apartments Multifamily PWREI 000 Xxxxxxx Xxxxxx
XX - 0000 Xxxxxxxx Townhomes Multifamily PWREI 000-000 Xxxxxx Xxxxx
XX - 0000 TDC Filter Industrial PWREI 0000 Xxxxx 00xx Xxxxx
PW - 3807 Xxxxxxx Highland Building Office PWREI 1991 Ford Parkway
PW - 6377 May Avenue Self-Storage Self Storage PWREI 0000 X.X. 00xx Xx.
XX - 0000 Xxxxxxxxxx Center Retail ARIES Xxxxx Xxxxx Xxxx & Xxxxxxxxxx Xxxx
XX - 0000 00 Xxxxxxxxxx Xxxxxx Multifamily PWREI 77 Xxxxxxxxxx Avenue
PW - 0000 Xxxxxxxxx Xxxxxx Xxxx Xxxxxx VALUEXPRESS 0000 Xxxx 00 Xxxxxx
XX - 0000 Super 8 Xxxxxxx Hospitality PWREI 000 Xxxxxx Xxx Xxxxx
XX - 0000 The Shops of Greenbriar Retail PWREI 0000 Xxxxxxxx Xxxxx
XX - 0000X Xxxxxxxxx Apartments Multifamily 0000 XX 000 Xxxxxx
XX - 0000X Keystone Apartments Multifamily 0000 Xxxxxxxxx 000xx Xxxxxx
XX - 0000 XxxxxXxxx & Keystone Apartments PWREI
PW - 7133 Villa Joyosa Multifamily PWREI 13150 Memorial Highway
PW - 3570 Super 8 Liverpool Hospitality VALUEXPRESS 0000 Xxxxxx Xxxx (Xxxxx 57)
PW - 3176 Quail Creek Self Storage Self Storage PWREI 3030 West Memorial Road
PW - 4546 Xxxxxx Xxxxx & Yonkers Apartments Multifamily PWREI 12914-12918 Xxxxxx Xxxxx Avenue
PW - 7021 Elegante Apartments Multifamily PWREI 0000-0000 XX 000xx Xxxxxx
PW - 3214 Xxxxx Place Office Park Office PWREI 0000 Xxxxx Xxxxxxx Xxxx
XX - 4426 000 Xxxxxx Xxxxxx Mixed IPI 000 Xxxxxx Xxxxxx
PW - 4897 Days Inn Xxxxxx Hospitality VALUEXPRESS 000 Xxxxxxx Xxxxx
XX - 0000 Xxxxxxxx & Xxxxxxx Other PWREI 000 Xxxxx Xx./000 Xxxxx Xxx.
PW - 2495 Metro Plaza Retail Center Retail PWREI 0000 Xxxx Xxxxxx Xxxxxx
PW - 3618 Xxxxxx House Apartments Multifamily PWREI 000-000 Xxxxxx Xxxxxx
XX - 0000 Xxxxx Xxxxx Building Retail PWREI 000 Xxxxxxx 00 Xxxxx
PW - 4309 Hearth House Multifamily IPI 50 Avenue A
PW - 4038 0000 Xxxxxxx Xxxx Office PWREI 3680 Cascade Road
PW - 4614 Days Inn Xxxxxxxx Hospitality VALUEXPRESS 0000 Xxxx Xxxxx
PW - 3619 Carlyle House Apartments Multifamily PWREI 000-000 Xxxx Xxxxxx
XX - 0000 Xxxxxxxxx Village Apartments Multifamily ARIES 000 Xxxxx Xxxxxxxxx
XX - 5254 Villa Verde I Multifamily PWREI 0000/0000 Xxxxxxxxxxxx Xxxxxx
XX - 0000 Xxxxxxxxx Video Retail PWREI 00 Xxxx 000 Xxxx Xxxxx Xxxx
XX - 0000 000-000 Xxxxxxxxx Xxxxxx Retail PWREI 000-000 Xxxxxxxxx Xxxxxx
XX - 0000 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxx XXXXXXXX 0 Xxxxxx Xxxx
LOAN ZIP MORTGAGE RATE NET ORIGINAL CUT-OFF DATE BALLOON/REPAYMENT
ID CITY STATE CODE RATE TYPE RATE BALANCE BALANCE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
PW - 0000 Xxxx Xxxxxx XX 00000 6.59% Fixed 0.06482 $33,400,000 $33,176,730 $28,865,223
XX - 0000 Xxxxxxxxxxx XX 00000 6.69 Fixed 6.5815 18,600,000 18,478,392 16,118,563
PW - 3825 Xxxxxx XX 00000 7.26 Fixed 7.1515 15,087,308 14,875,024 5,178,669
PW - 4819 Xxxxxxxx XX 00000 6.69 Fixed 6.5815 12,600,000 12,517,620 10,919,027
XX - 0000 Xxxxxxx XX 00000 7.8 Fixed 7.6915 11,480,000 11,474,466 10,252,514
PW - 0000 Xxx Xxxxxxx XX 00000 7.8 Fixed 7.6915 10,962,000 10,956,716 9,776,744
PW - 0000 Xxxxxxxxxxx XX 00000 7.74 Fixed 7.6315 9,175,000 9,170,484 8,171,044
PW - 1696 Xxxxx XX 731 7.24 Fixed 7.1315 8,820,982 8,664,604 69,035
PW - 0000 Xxxxx Xxxxx XX 00000 7.15 Fixed 7.0415 8,500,000 8,342,334 5,849,039
PW - 3879 Xxxxxxxxxxxxxx XX 00000 7.45 Fixed 7.3415 7,911,959 7,911,959 2,461,730
PW - 7009 Xxxxxxxx XX 00000 7.77 Fixed 7.6615 7,700,000 7,690,800 6,860,020
PW - 3000 Xxxxxx XX 00000 7.03 Fixed 6.9215 7,725,000 7,671,620 6,753,275
XX - 0000 Xxxxxxx XX 00000 7.51 Fixed 7.4015 7,595,000 7,585,297 6,723,400
PW - 4035 Xxxxxxxx XX 00000 7.1 Fixed 6.9915 7,000,000 6,952,383 6,130,629
XX - 0000 Xxxxx XX 00000 7.25 Fixed 7.1415 6,500,000 6,466,506 5,041,176
XX - 0000 Xxxxxxx XX 00000 7.62 Fixed 7.5115 6,321,000 6,313,149 5,610,863
PW - 5651 Xxxxxxx XX 00000 8.05 Fixed 7.9415 5,950,000 5,908,372 4,923,155
XX - 0000 Xx. Xxxx XX 00000 7.52 Fixed 7.4115 5,500,000 5,431,644 3,833,547
XX - 0000 Xxxxxxxx XX 00000 6.59 Fixed 6.4815 5,100,000 5,065,908 4,407,564
PW - 4139 Xxxxx XX 00000 7.92 Fixed 7.8115 5,000,000 4,994,257 4,470,649
PW - 4149 Salem NH 3079 7.26 Fixed 7.1515 5,000,000 4,961,082 4,557,745
PW - 3766 Greenwood IN 46142 7.1 Fixed 6.9915 5,000,000 4,955,277 4,379,795
XX - 0000 Xxx Xxxxx XX 00000 6.61 Fixed 6.5015 4,900,000 4,742,905 1,546,889
XX - 0000 Xxxxxxx XX 00000 7.62 Fixed 7.5115 4,645,000 4,639,231 4,123,155
PW - 0000X Xxxxx Xxxxx Xxxxxxx XX 00000 2,775,000 2,692,505 67,817
PW - 4151B Xxxxxxxxx XX 00000 1,970,000 1,911,436 48,144
PW - 4151 6.51 Fixed 6.51 4,745,000 4,603,940 115,961
PW - 1890 Cranford NJ 7016 7.01 Fixed 6.9015 4,400,000 4,366,567 3,845,065
PW - 2005 Xxxxxxxxxx XX 00000 7.11 Fixed 7.0015 4,350,000 4,317,700 3,811,297
PW - 4370 Xxxxxxxx XX 00000 7.85 Fixed 7.7415 4,350,000 4,298,205 213,590
PW - 2982A Collingswood NJ 8108 432,000 420,773 14,643
PW - 2982B Madison NJ 7940 289,000 281,489 9,796
PW - 2982C Springfield NJ 7081 420,000 409,085 14,236
PW - 2982D Edison NJ 8837 680,000 662,328 23,049
PW - 2982E Plainfield NJ 7060 129,000 125,647 4,373
PW - 2982F Xxxxxxxxx XX 0000 2,300,000 2,240,226 77,959
PW - 2982 6.64 Fixed 6.5315 4,250,000 4,139,548 144,055
PW - 4923 Xxxxxxx Xxxxx XX 00000 6.49 Fixed 6.3815 3,900,000 3,864,307 3,078,542
PW - 3441 Xxx Xxxx XX 00000 7.07 Fixed 6.9615 3,900,000 3,849,159 3,108,483
XX - 0000 Xxxxxxxx Xxxxxx XX 00000 8.12 Fixed 8.0115 3,850,000 3,823,400 3,589,039
PW - 6460 Washington D.C. DC 20002 9.2 Fixed 9.0915 3,825,000 3,819,352 3,266,932
XX - 0000 Xxxx XX 00000 7.4 Fixed 7.2915 3,615,000 3,594,905 3,191,412
PW - 2550 Xxxxxxxxx XX 00000 9.59 Fixed 9.4815 3,500,000 3,467,048 2,806,358
PW - 3397 Xxxxxxx XX 00000 6.95 Fixed 6.8415 3,400,000 3,363,037 2,723,146
PW - 3086 Xxxxxxxxxx XX 00000 7.81 Fixed 7.7015 3,300,000 3,266,101 2,712,475
PW - 6024 Xxxx Xxxxxxxxxx XX 00000 7.95 Fixed 7.8415 3,170,000 3,168,551 2,967,261
XX - 0000 Xxxxxxx XX 00000 7.62 Fixed 7.5115 3,148,000 3,144,090 2,794,336
XX - 0000 Xxx Xxxxx XX 00000 7.4 Fixed 7.2915 3,100,000 3,068,825 2,517,069
PW - 0000 Xxxxxx Xxxx XX 00000 6.96 Fixed 6.8515 3,025,000 2,996,108 2,424,326
PW - 3189 Xxxxxxxxxx XX 00000 7.15 Fixed 7.0415 2,936,000 2,916,251 2,574,688
PW - 6023 Xxx Xxxx XX 00000 7.6 Fixed 7.4915 2,900,000 2,898,503 2,699,839
PW - 4479 Xxxxxxxxx XX 00000 7.5 Fixed 7.3915 2,900,000 2,874,821 2,362,528
XX - 0000 Xxxxxx XX 00000 7.51 Fixed 7.4015 2,900,000 2,871,394 2,362,390
PW - 0000 Xxxxxxxx Xxxxx XX 00000 8.4 Fixed 8.2915 2,850,000 2,848,903 2,685,507
XX - 0000 Xxxxxxxxx XX 00000 7.64 Fixed 7.5315 2,850,000 2,825,870 210,440
PW - 2064 Xxxxxxxx XX 00000 7.23 Fixed 7.1215 2,850,000 2,814,502 2,303,548
PW - 6329 Xxxxxxx XX 00000 8.15 Fixed 8.0415 2,800,000 2,798,812 2,518,121
XX - 0000 Xxxxxxxxxxx XX 00000 6.39 Fixed 6.2815 2,850,000 2,783,596 67,840
PW - 0000 Xxxx Xxxxx XX 00000 6.26 Fixed 6.1515 2,800,000 2,779,883 2,397,652
PW - 0000 Xxx Xxxxx XX 00000 7.4 Fixed 7.2915 2,800,000 2,775,250 2,274,272
PW - 3268 East Hanover NJ 7936 6.75 Fixed 6.6415 2,904,245 2,769,932 33,055
PW - 4355 Mansfield Center CT 6250 7.69 Fixed 7.5815 2,800,000 2,756,214 132,403
PW - 6265 Xxxxxxx XX 00000 8.05 Fixed 7.9415 2,700,000 2,694,952 2,235,062
PW - 3265A Xxxxxxxxx XX 00000 1,900,000 1,837,076 58,109
PW - 3265B Xxxxxxxxx XX 00000 825,000 797,678 25,232
PW - 3265 7.53 Fixed 7.4215 2,725,000 2,634,753 83,341
PW - 1481 Xxxxxxxxx XX 00000 7.12 Fixed 7.0115 2,560,000 2,532,971 2,061,112
PW - 4345 Xxxxxxx XX 00000 7.15 Fixed 7.0415 2,500,000 2,476,903 2,015,317
PW - 3146 Xxxxxx XX 00000 7.81 Fixed 7.7015 2,500,000 2,472,003 2,055,760
PW - 3821 Xxxxxxxxx XX 00000 7.66 Fixed 7.5515 2,450,000 2,418,545 1,908,153
PW - 3322 Xxx Xxxx XX 00000 7.31 Fixed 7.2015 2,425,000 2,411,233 2,135,982
XX - 0000 Xxxxxxx XX 00000 7.6 Fixed 7.4915 2,400,000 2,387,276 2,129,361
PW - 2969 Xxx Xxxx XX 00000 7.21 Fixed 7.1015 2,400,000 2,382,589 2,108,217
PW - 3615 Xxxxxxx XX 00000 6.92 Fixed 6.8115 2,400,000 2,354,142 94,199
PW - 7098 Xxxxxx Xxxx XX 00000 8.18 Fixed 8.0715 2,300,000 2,299,035 2,069,904
XX - 0000 Xxxxxxx XX 00000 7.63 Fixed 7.5215 2,315,000 2,297,554 1,892,437
PW - 2346 Xxxxxxx XX 00000 7.41 Fixed 7.3015 2,300,000 2,284,081 2,030,662
XX - 0000 Xxx Xxxxx XX 00000 7.2 Fixed 7.0915 2,300,000 2,261,678 95,985
PW - 3185 Xxxx Xxxxx XX 00000 7.05 Fixed 6.9415 2,294,655 2,259,987 614,398
PW - 3736 Troy AL 36081 6.7 Fixed 6.5915 2,280,000 2,257,223 1,812,446
XX - 0000 Xxxxx Xxxx XX 00000 7.18 Fixed 7.0715 2,275,000 2,228,908 1,567,817
PW - 3714 Xxxxxxx XX 00000 7.28 Fixed 7.1715 2,225,000 2,204,909 1,800,726
PW - 5668 Xxxxxxx XX 00000 8.3 Fixed 8.1915 2,175,000 2,171,862 1,963,823
PW - 3035 Xxxxxxxxxxxx XX 00000 7.9 Fixed 7.7915 2,200,000 2,155,435 111,279
PW - 5994A Xxxxxxxxxx XX 00000 412,568 412,110 370,027
PW - 5994B Xxxxxxxxx XX 00000 737,862 737,043 661,779
PW - 5994C Xxxxxxxxx XX 00000 999,570 998,461 896,502
PW - 5994 8.05 Fixed 7.9415 2,150,000 2,147,615 1,928,308
PW - 1623 Methuen MA 1844 7.07 Fixed 6.9615 2,150,000 2,124,779 1,728,656
PW - 3329 Xxxxx XX 00000 7.36 Fixed 7.2515 2,125,000 2,099,147 1,724,321
PW - 6314 Xxxxxxx XX 00000 7.61 Fixed 7.5015 2,100,000 2,097,385 1,863,614
XX - 0000 Xxxxxx XX 00000 7.76 Fixed 7.6515 2,100,000 2,076,262 1,724,331
PW - 0000 Xxxxxxxx Xxxxxxxx XX 00000 6.66 Fixed 6.5515 2,050,000 2,036,507 1,775,060
PW - 4762 Xxxxxxxxxx XX 00000 7.5 Fixed 7.3915 2,050,000 2,032,201 1,670,062
XX - 0000 Xxxxxxx XX 00000 6.7 Fixed 6.5915 2,000,000 1,985,134 1,733,149
PW - 3463 Xxxxxxxxxx XX 00000 6.93 Fixed 6.8215 2,000,000 1,978,183 1,600,858
PW - 6021 Xxxxxxx XX 00000 8.81 Fixed 8.7015 1,900,000 1,896,954 1,606,173
XX - 0000 Xxxxxxxx XX 00000 7.4 Fixed 7.2915 1,900,000 1,885,096 1,542,658
PW - 3666 Xxxxx XX 00000 7.78 Fixed 7.6715 1,900,000 1,864,455 94,110
PW - 6022 Xxxxxxx Xxxxx XX 00000 7.65 Fixed 7.5415 1,860,000 1,859,056 1,732,989
PW - 3901 Xxxxxxxxx XX 00000 7.36 Fixed 7.2515 1,810,000 1,797,323 1,596,032
PW - 3563A Xxxxxxxxxx XX 00000 311,000 303,095 8,269
PW - 3563B Xxxxxxxxxx XX 00000 403,000 392,757 10,715
PW - 3563C Xxxxxxxxxx XX 00000 182,000 177,374 4,839
PW - 3563D Xxxxxxxxxx XX 00000 929,000 905,387 24,700
PW - 3563 6.89 Fixed 6.7815 1,825,000 1,778,612 48,523
PW - 3709 Xxxxxx XX 00000 7.84 Fixed 7.7315 1,800,000 1,769,508 1,269,041
PW - 4553 Xxxxxxx XX 00000 7.48 Fixed 7.3715 1,770,000 1,748,931 1,441,425
XX - 0000 Xxxxxxx XX 00000 8.2 Fixed 8.0915 1,725,000 1,724,282 1,553,151
PW - 1586 Xxxxxxxx XX 00000 7.09 Fixed 6.9815 1,700,000 1,686,221 1,489,208
PW - 3466 Xxxxxx XX 00000 7.66 Fixed 7.5515 1,700,000 1,683,670 1,390,973
PW - 1596 Xxxxxx XX 00000 7.01 Fixed 6.9015 1,700,000 1,664,785 1,164,405
XX - 0000 Xxxxxx Xxxx XX 00000 6.51 Fixed 6.4015 1,650,000 1,600,949 40,325
PW - 5025 Xxxxxxx XX 00000 7.75 Fixed 7.6415 1,600,000 1,580,699 1,124,183
PW - 3286 Xxxxxxxx Xxxxxxx XX 00000 7.2 Fixed 7.0915 1,600,000 1,579,963 1,292,041
PW - 1777 Xxxxxxxxx XX 00000 7.54 Fixed 7.4315 1,600,000 1,551,833 48,441
PW - 6112 Xxxxxxxxx XX 00000 8.05 Fixed 7.9415 1,550,000 1,549,317 1,453,059
XX - 0000 Xxxxxxxx XX 00000 7.65 Fixed 7.5415 1,550,000 1,549,213 1,377,356
PW - 3686 Xxxxx Xxxxx XX 00000 8.35 Fixed 8.2415 1,552,000 1,534,699 1,112,966
PW - 2526 Xxxxxx XX 00000 7.42 Fixed 7.3115 1,525,000 1,509,717 1,238,974
XX - 0000 Xxxxxxxxx XX 00000 7.71 Fixed 7.6015 1,520,000 1,502,658 1,246,266
PW - 0000 Xxxx Xxxxxxxx XX 0000 7.52 Fixed 7.4115 1,500,000 1,493,109 1,221,953
XX - 0000 Xxxxxx XX 00000 7.3 Fixed 7.1915 1,500,000 1,486,695 717,852
PW - 3426 Abilene TX 79601 7.7 Fixed 7.5915 1,500,000 1,484,278 1,229,006
PW - 3893 Xxxxxxx XX 00000 7.28 Fixed 7.1715 1,500,000 1,478,185 64,478
PW - 2443 Xxxxxx XX 00000 7.05 Fixed 6.9415 1,470,000 1,447,974 1,008,063
XX - 0000 Xxxxxxx XX 00000 8.25 Fixed 8.1415 1,440,000 1,435,065 1,297,492
PW - 0000X Xxxxxx XX 2110 1,050,000 1,035,276 845,293
PW - 3545B Wareham MA 2558 400,000 394,391 322,016
PW - 3545 MA 7.11 Fixed 7.0015 1,450,000 1,429,667 1,167,309
PW - 3616 Revere MA 2151 7.05 Fixed 6.9415 1,450,000 1,425,373 608,624
PW - 3968 Xxxxxxxx XX 00000 7.53 Fixed 7.4215 1,400,000 1,390,583 1,335,267
XX - 0000 Xxxxxx XX 00000 6.76 Fixed 6.6515 1,400,000 1,381,045 1,115,225
XX - 0000 Xx. Xxxx XX 00000 7.04 Fixed 6.9315 1,400,000 1,376,191 56,064
PW - 6377 Xxxxxxxx Xxxx XX 00000 8.36 Fixed 8.2515 1,370,000 1,367,592 1,144,009
XX - 0000 Xxxxxxxxx XX 00000 7.4 Fixed 7.2915 1,350,000 1,340,634 1,191,611
PW - 3093 Passaic NJ 7055 7.39 Fixed 7.2815 1,350,000 1,336,400 91,508
PW - 3031 Indianapolis IN 46205 7.45 Fixed 7.3415 1,350,000 1,333,842 1,098,408
PW - 3687 Xxxxxxx XX 00000 7.96 Fixed 7.8515 1,300,000 1,284,742 920,024
PW - 2799 Xxxxxxx XX 00000 7.58 Fixed 7.4715 1,300,000 1,283,238 1,061,437
PW - 0000X Xxxxx Xxxxx XX 00000 822,000 820,386 675,583
PW - 0000X Xxxxx Xxxxx XX 00000 455,000 454,107 373,954
PW - 7134 7.8 Fixed 7.6915 1,277,000 1,274,493 1,049,536
PW - 0000 Xxxxx Xxxxx XX 00000 7.8 Fixed 7.6915 1,264,000 1,261,519 1,038,852
PW - 3570 Xxxxxxxxx XX 00000 7.54 Fixed 7.4315 1,275,000 1,254,668 58,041
PW - 3176 Xxxxxxxx Xxxx XX 00000 7.1 Fixed 6.9915 1,250,000 1,241,497 1,094,755
PW - 4546 Cumberland MD 21502 8.1 Fixed 7.9915 1,200,000 1,193,977 994,262
PW - 0000 Xxxxx Xxxxx Xxxxx XX 00000 7.8 Fixed 7.6915 1,195,000 1,192,654 982,144
PW - 3214 Xxxxxxxxx XX 00000 7.63 Fixed 7.5215 1,200,000 1,191,466 1,065,685
PW - 4426 Xxx Xxxx XX 00000 7.35 Fixed 7.2415 1,200,000 1,190,505 972,855
PW - 4897 Xxxxxx XX 00000 8.15 Fixed 8.0415 1,200,000 1,186,264 854,764
PW - 2903 Rockland/Whitman MA 2370 7.52 Fixed 7.4115 1,200,000 1,185,820 978,401
PW - 2495 Xxxxxxx XX 00000 7.26 Fixed 7.1515 1,200,000 1,166,607 33,995
PW - 3618 Lowell MA 1850 7.1 Fixed 6.9915 1,200,000 1,166,129 32,949
PW - 1445 Eatontown NJ 7724 7.31 Fixed 7.2015 1,150,000 1,127,096 796,211
PW - 4309 Xxx Xxxx XX 00000 6.8 Fixed 6.6915 1,100,000 1,091,891 877,156
PW - 4038 Xxxxxxx XX 00000 7.34 Fixed 7.2315 1,050,000 1,043,235 925,261
PW - 4614 Jennings LA 70546 7.6 Fixed 7.4915 1,012,500 1,000,046 46,677
PW - 3619 Revere MA 2151 7.05 Fixed 6.9415 1,000,000 971,649 27,190
PW - 4371 Xxxxx XX 00000 7.45 Fixed 7.3415 950,000 938,630 772,954
PW - 5254 Xxxxx Xxxxx XX 00000 8.35 Fixed 8.2415 900,000 896,991 812,790
PW - 3515 Xxxxxxxx Xxxxxxx XX 00000 7.41 Fixed 7.3015 850,000 839,752 690,764
PW - 1663 Boston MA 2114 6.97 Fixed 6.8615 800,000 790,450 641,242
PW - 5947 Xxxxxxxxx XX 00000 8.6 Fixed 8.4915 725,000 724,743 658,740
467,597,425
LOAN TERM TERM MATURITY ARD TERM FIRST PAYMENT DEBT APPRAISED CURRENT
ID (MOS.) (MOS.) DATE DATE (MOS.) DATE SERVICE VALUE LTV
------------------------------------------------------------------------------------------------------------------------------------
PW - 4817 120 112 10/1/28 10/1/08 360 11/1/98 213,091.49 $46,750,000 71.00%
PW - 4818 120 112 10/1/28 10/1/08 360 11/1/98 119,898.35 25,000,000 73.9
PW - 3825 239 228 6/5/18 293.577 8/5/98 110,000.00 15,400,000 96.6
PW - 4819 120 112 10/1/28 10/1/08 360 11/1/98 81,221.46 16,750,000 74.7
PW - 7371 119 118 5/1/29 4/1/09 360 6/1/99 82,641.13 15,980,000 71.8
PW - 6093 120 119 5/1/09 360 6/1/99 78,912.20 14,000,000 78.3
PW - 7215 120 119 5/1/09 360 6/1/99 65,667.43 12,300,000 74.6
PW - 1696 238 229 7/1/18 NAP 10/1/98 70,180.11 9,500,000 91.2
PW - 3346 120 110 8/1/08 240 9/1/98 66,667.90 10,700,000 78
PW - 3879 299 288 6/1/23 NAP 8/1/98 50,757.41 8,200,000 96.5
PW - 7009 120 118 4/1/09 360 5/1/99 55,270.20 9,694,000 79.3
PW - 3000 120 111 9/1/08 360 10/1/98 51,550.35 10,300,000 74.5
PW - 6542 120 118 4/1/09 360 5/1/99 53,157.36 9,900,000 76.6
PW - 4035 120 111 9/1/08 360 10/1/98 47,042.24 8,900,000 78.1
PW - 2034 180 173 11/1/13 360 12/1/98 44,341.46 10,800,000 59.9
PW - 6543 120 118 4/1/09 360 5/1/99 44,717.90 8,100,000 77.9
PW - 5651 120 113 11/1/08 300 12/1/98 46,120.32 8,000,000 73.9
PW - 4747 120 113 11/1/08 240 12/1/98 44,374.91 8,100,000 67.1
PW - 2365 120 112 10/1/08 360 11/1/98 32,537.92 6,800,000 74.5
PW - 4139 120 118 4/1/09 360 5/1/99 36,409.77 6,600,000 75.7
PW - 4149 96 85 7/1/06 360 8/1/98 34,142.73 7,000,000 70.9
PW - 3766 120 108 6/1/08 360 7/1/98 33,601.60 6,250,000 79.3
PW - 2804 116 107 5/1/08 NAP 10/1/98 43,644.95 5,210,000 91
PW - 6545 120 118 4/1/09 360 5/1/99 32,861.04 5,860,000 79.2
PW - 4151A 24,188.49 8,400,000
PW - 4151B 17,171.65 5,200,000
PW - 4151 180 171 9/1/13 180 10/1/98 41,360.14 13,600,000 33.9
PW - 1890 120 110 8/1/08 360 9/1/98 29,302.87 6,900,000 63.3
PW - 2005 120 110 8/1/08 360 9/1/98 29,262.73 5,650,000 76.4
PW - 4370 240 233 11/1/18 240 12/1/98 35,980.11 6,469,000 66.4
PW - 2982A 3,796.51 475,000
PW - 2982B 2,539.80 375,000
PW - 2982C 3,691.05 625,000
PW - 2982D 5,975.99 1,050,000
PW - 2982E 1,133.68 275,000
PW - 2982F 20,212.91 3,250,000
PW - 2982 179 171 9/1/13 180 11/1/98 37,349.94 6,050,000 68.4
PW - 4923 120 113 11/1/08 300 12/1/98 26,308.71 5,225,000 74
PW - 3441 120 112 10/1/08 300 11/1/98 27,738.79 6,200,000 62.1
PW - 4975 60 53 11/1/03 300 12/1/98 30,021.62 4,980,000 76.8
PW - 6460 120 118 4/1/09 300 5/1/99 32,624.74 5,500,000 69.4
PW - 3471 120 112 10/1/08 360 11/1/98 25,029.53 4,540,000 79.2
PW - 2550 102 95 5/1/07 240 12/1/98 32,830.57 7,900,000 43.9
PW - 3397 120 111 9/1/08 300 10/1/98 23,922.15 5,100,000 65.9
PW - 3086 120 110 8/1/08 300 9/1/98 25,055.98 4,550,000 71.8
PW - 6024 84 83 5/1/06 360 6/1/99 23,149.94 4,000,000 79.2
PW - 6544 120 118 4/1/09 360 5/1/99 22,270.52 4,000,000 78.6
PW - 4047 120 111 9/1/08 300 10/1/98 22,707.46 5,100,000 60.2
PW - 2348 120 112 10/1/08 300 11/1/98 21,302.94 5,200,000 57.6
PW - 3189 120 111 9/1/08 360 10/1/98 19,829.94 3,670,000 79.5
PW - 6023 84 83 5/1/06 360 6/1/99 20,476.17 5,500,000 52.7
PW - 4479 120 112 10/1/08 300 11/1/98 21,430.74 3,920,000 73.3
PW - 4319 120 111 9/1/08 300 10/1/98 21,449.61 3,900,000 73.6
PW - 6025 84 83 5/1/06 360 6/1/99 21,712.37 4,880,000 58.4
PW - 2358 300 292 10/1/23 300 11/1/98 21,321.46 3,950,000 71.5
PW - 2064 120 109 7/1/08 300 8/1/98 20,563.29 4,000,000 70.4
PW - 6329 120 119 5/1/09 360 6/1/99 20,838.95 3,740,000 74.8
PW - 4709 180 173 11/1/13 180 12/1/98 24,654.54 5,000,000 55.7
PW - 4625 120 112 10/1/08 360 11/1/98 17,258.30 4,650,000 59.8
PW - 3886 120 112 10/1/08 300 11/1/98 20,509.97 5,150,000 53.9
PW - 3268 135 125 11/1/09 NAP 9/1/98 29,646.21 4,700,000 58.9
PW - 4355 240 231 9/1/18 240 10/1/98 22,883.02 3,800,000 72.5
PW - 6265 120 118 4/1/09 300 5/1/99 20,928.55 3,400,000 79.3
PW - 3265A 17,645.64 2,945,000
PW - 3265B 7,661.92 1,445,000
PW - 3265 180 169 7/1/13 180 8/1/98 25,307.56 4,390,000 60
PW - 1481 120 111 9/1/08 300 10/1/98 18,289.99 3,300,000 76.8
PW - 4345 120 112 10/1/08 300 11/1/98 17,909.42 3,400,000 72.9
PW - 3146 120 109 7/1/08 300 8/1/98 18,981.81 3,200,000 77.3
PW - 3821 120 110 8/1/08 276 9/1/98 18,903.86 4,000,000 60.5
PW - 3322 120 112 10/1/08 360 11/1/98 16,641.58 3,800,000 63.5
PW - 4629 120 112 10/1/08 360 11/1/98 16,945.79 3,200,000 74.6
PW - 2969 120 110 8/1/08 360 9/1/98 16,307.17 3,100,000 76.9
PW - 3615 240 230 8/1/18 240 9/1/98 18,492.10 4,100,000 57.4
PW - 7098 120 119 5/1/09 360 6/1/99 17,166.08 3,800,000 60.5
PW - 4467 120 113 11/1/08 300 12/1/98 17,303.88 3,400,000 67.6
PW - 2346 120 110 8/1/08 360 9/1/98 15,940.43 3,000,000 76.1
PW - 4048 240 231 9/1/18 240 10/1/98 18,109.03 3,250,000 69.6
PW - 3185 226 215 5/1/17 NAP 8/1/98 16,745.89 2,640,000 85.6
PW - 3736 120 112 10/1/08 300 11/1/98 15,680.87 2,850,000 79.2
PW - 2233 120 109 7/1/08 240 8/1/98 17,884.69 3,250,000 68.6
PW - 3714 120 112 10/1/08 300 11/1/98 16,125.48 3,000,000 73.5
PW - 5668 120 117 3/1/09 360 4/1/99 16,416.56 3,200,000 67.9
PW - 3035 240 228 6/1/18 240 7/1/98 18,265.00 2,950,000 73.1
PW - 5994A 3,041.67 520,000
PW - 5994B 5,439.91 930,000
PW - 5994C 7,369.36 1,260,000
PW - 5994 120 118 4/1/09 360 5/1/99 15,850.94 2,710,000 79.2
PW - 1623 120 110 8/1/08 300 9/1/98 15,291.90 3,000,000 70.8
PW - 3329 120 109 7/1/08 300 8/1/98 15,510.56 2,950,000 71.2
PW - 6314 120 118 4/1/09 360 5/1/99 14,842.01 3,000,000 69.9
PW - 4008 120 109 7/1/08 300 8/1/98 15,875.69 2,850,000 72.9
PW - 4112 120 112 10/1/08 360 11/1/98 13,173.85 2,800,000 72.7
PW - 4762 120 112 10/1/08 300 11/1/98 15,149.32 3,000,000 67.7
PW - 4674 120 111 9/1/08 360 10/1/98 12,905.56 2,500,000 79.4
PW - 3463 120 111 9/1/08 300 10/1/98 14,046.40 4,100,000 48.2
PW - 6021 120 118 4/1/09 300 5/1/99 15,698.26 3,500,000 54.2
PW - 4896 120 113 11/1/08 300 12/1/98 13,917.48 2,400,000 78.5
PW - 3666 240 229 7/1/18 240 8/1/98 15,633.21 2,500,000 74.6
PW - 6022 84 83 5/1/06 360 6/1/99 13,196.97 2,800,000 66.4
PW - 3901 120 110 8/1/08 360 9/1/98 12,482.72 2,800,000 64.2
PW - 3563A 2,776.27 550,000
PW - 3563B 3,597.54 650,000
PW - 3563C 1,624.70 425,000
PW - 3563D 8,293.09 1,350,000
PW - 3563 180 172 10/1/13 180 11/1/98 16,291.59 2,975,000 59.8
PW - 3709 120 110 8/1/08 240 9/1/98 14,877.18 2,600,000 68.1
PW - 4553 120 109 7/1/08 300 8/1/98 13,057.13 2,380,000 73.5
PW - 7313 120 119 5/1/09 360 6/1/99 12,898.76 2,700,000 63.9
PW - 1586 120 109 7/1/08 360 8/1/98 11,413.08 2,300,000 73.3
PW - 3466 120 111 9/1/08 300 10/1/98 12,740.31 6,000,000 28.1
PW - 1596 120 109 7/1/08 240 8/1/98 13,190.29 2,600,000 64
PW - 4153 180 171 9/1/13 180 10/1/98 14,382.34 3,220,000 49.7
PW - 5025 120 113 11/1/08 240 12/1/98 13,135.18 2,150,000 73.5
PW - 3286 120 109 7/1/08 300 8/1/98 11,513.42 2,150,000 73.5
PW - 1777 180 170 8/1/13 180 9/1/98 14,868.59 2,315,000 67
PW - 6112 84 83 5/1/06 360 6/1/99 11,427.42 2,850,000 54.4
PW - 6414 120 119 5/1/09 360 6/1/99 10,997.47 1,940,000 79.9
PW - 3686 120 113 11/1/08 240 12/1/98 13,321.64 2,300,000 66.7
PW - 2526 120 111 9/1/08 300 10/1/98 11,190.38 3,220,000 46.9
PW - 3076 120 109 7/1/08 300 8/1/98 11,441.11 2,125,000 70.7
PW - 5083 120 116 2/1/09 300 3/1/99 11,104.39 2,100,000 71.1
PW - 4678 120 117 3/1/09 180 4/1/99 13,735.25 3,480,000 42.7
PW - 3426 120 110 8/1/08 300 9/1/98 11,280.74 2,070,000 71.7
PW - 3893 240 232 10/1/18 240 11/1/98 11,882.92 1,930,000 76.6
PW - 2443 120 112 10/1/08 240 11/1/98 11,441.05 1,950,000 74.3
PW - 4991 120 114 12/1/08 360 1/1/99 10,818.24 1,880,000 76.3
PW - 3545A 7,495.02 1,260,000
PW - 3545B 2,855.25 600,000
PW - 3545 120 108 6/1/08 300 7/1/98 10,350.27 1,860,000 76.9
PW - 3616 180 171 9/1/13 240 10/1/98 11,285.39 3,600,000 39.6
PW - 3968 60 50 8/1/03 360 9/1/98 9,817.78 1,880,000 74
PW - 2509 120 109 7/1/08 300 8/1/98 9,681.60 2,100,000 65.8
PW - 3807 240 231 9/1/18 240 10/1/98 10,887.82 1,900,000 72.4
PW - 6377 120 118 4/1/09 300 5/1/99 10,902.66 1,850,000 73.9
PW - 3970 120 110 8/1/08 360 9/1/98 9,347.13 1,800,000 74.5
PW - 3093 300 291 9/1/23 300 10/1/98 9,879.99 1,900,000 70.3
PW - 3031 120 109 7/1/08 300 8/1/98 9,932.52 1,900,000 70.2
PW - 3687 120 113 11/1/08 240 12/1/98 10,841.38 2,075,000 61.9
PW - 2799 120 108 6/1/08 300 7/1/98 9,674.63 2,600,000 49.4
PW - 7134A 6,235.81 1,050,000
PW - 7134B 3,451.70 570,000
PW - 7134 120 118 4/1/09 300 5/1/99 9,687.51 1,620,000 78.7
PW - 7133 120 118 4/1/09 300 5/1/99 9,588.89 1,575,000 80.1
PW - 3570 240 231 9/1/18 240 10/1/98 10,302.52 1,700,000 73.8
PW - 3176 120 111 9/1/08 360 10/1/98 8,400.40 1,675,000 74.1
PW - 4546 120 115 1/1/09 300 2/1/99 9,341.43 1,600,000 74.6
PW - 7021 120 118 4/1/09 300 5/1/99 9,065.44 1,535,000 77.7
PW - 3214 120 109 7/1/08 360 8/1/98 8,497.65 1,645,000 72.4
PW - 4426 120 113 11/1/08 300 12/1/98 8,751.14 1,750,000 68
PW - 4897 120 113 11/1/08 240 12/1/98 10,149.59 1,900,000 62.4
PW - 2903 120 109 7/1/08 300 8/1/98 8,883.51 1,570,000 75.5
PW - 2495 180 171 9/1/13 180 10/1/98 10,961.12 1,600,000 72.9
PW - 3618 180 171 9/1/13 180 10/1/98 10,853.14 2,600,000 44.9
PW - 1445 120 109 7/1/08 240 8/1/98 9,131.18 1,500,000 75.1
PW - 4309 120 114 12/1/08 300 1/1/99 7,634.79 2,700,000 40.4
PW - 4038 120 111 9/1/08 360 10/1/98 7,227.06 1,400,000 74.5
PW - 4614 240 233 11/1/18 240 12/1/98 8,218.65 2,000,000 50
PW - 3619 180 171 9/1/13 180 10/1/98 9,016.26 5,500,000 17.7
PW - 4371 120 109 7/1/08 300 8/1/98 6,989.55 1,300,000 72.2
PW - 5254 120 114 12/1/08 360 1/1/99 6,824.77 1,200,000 74.7
PW - 3515 120 109 7/1/08 300 8/1/98 6,231.75 1,250,000 67.2
PW - 1663 120 110 8/1/08 300 9/1/98 5,638.93 1,000,000 79
PW - 5947 120 119 5/1/09 360 6/1/99 5,626.08 1,000,000 72.5
LOAN UNDERWRITING SERVICING FEE EXCESS INTEREST ACCRUAL IDOT CTL AND / OR
ID DSCR RATE YIELD RATE METHOD DEFEASED LOAN LOAN LEASE ENHANCEMENT POLICY
------------------------------------------------------------------------------------------------------------------------------------
PW - 4817 1.65x 0.07% 0.04% Actual/360 Yes Yes No
PW - 4818 1.45 0.0735 0.035 Actual/360 Yes Yes No
PW - 3825 1 0.0735 0.035 30/360 Yes Yes Yes
PW - 4819 1.32 0.0735 0.035 Actual/360 Yes Yes No
PW - 7371 1.23 0.0735 0.035 Actual/360 Yes No
PW - 6093 1.2 0.0735 0.035 Actual/360 Yes No
PW - 7215 1.22 0.0735 0.035 Actual/360 Yes No
PW - 1696 1.06 0.0735 0.035 30/360 Yes Yes Yes
PW - 3346 1.22 0.0735 0.035 Actual/360 Yes No
PW - 3879 1.02 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 7009 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3000 1.7 0.0735 0.035 Actual/360 Yes No
PW - 6542 1.27 0.0735 0.035 Actual/360 Yes No
PW - 4035 1.26 0.0735 0.035 Actual/360 Yes No
PW - 2034 1.93 0.0735 0.035 Actual/360 Yes No
PW - 6543 1.25 0.0735 0.035 Actual/360 Yes No
PW - 5651 1.47 0.0735 0.035 Actual/360 Yes No
PW - 4747 1.39 0.0735 0.035 Actual/360 Yes No
PW - 2365 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4139 1.3 0.0735 0.035 Actual/360 Yes No
PW - 4149 1.2 0.0735 0.035 Actual/360 Yes No
PW - 3766 1.42 0.0735 0.035 Actual/360 Yes No
PW - 2804 1 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 6545 1.25 0.0735 0.035 Actual/360 Yes No
PW - 4151A 0.0735 0.035 Yes No
PW - 4151B 0.0735 0.035 Yes No
PW - 4151 2.66 Actual/360
PW - 1890 1.35 0.0735 0.035 Actual/360 Yes No
PW - 2005 1.52 0.0735 0.035 Actual/360 Yes No
PW - 4370 1.43 0.0735 0.035 Actual/360 Yes No
PW - 2982A
PW - 2982B
PW - 2982C
PW - 2982D
PW - 2982E
PW - 2982F
PW - 2982 1.29 0.0735 0.035 Actual/360 Yes No
PW - 4923 1.76 0.0735 0.035 Actual/360 Yes No
PW - 3441 1.44 0.0735 0.035 Actual/360 Yes No
PW - 4975 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6460 1.55 0.0735 0.035 Actual/360 Yes No
PW - 3471 1.27 0.0735 0.035 Actual/360 Yes No
PW - 2550 1.6 0.0735 0.035 Actual/360 Yes No
PW - 3397 1.81 0.0735 0.035 Actual/360 Yes No
PW - 3086 1.85 0.0735 0.035 Actual/360 Yes No
PW - 6024 1.27 0.0735 0.035 Actual/360 Yes No
PW - 6544 1.26 0.0735 0.035 Actual/360 Yes No
PW - 4047 1.2 0.0735 0.035 Actual/360 Yes No
PW - 2348 2.38 0.0735 0.035 Actual/360 Yes No
PW - 3189 1.35 0.0735 0.035 Actual/360 Yes No
PW - 6023 1.55 0.0735 0.035 Actual/360 Yes No
PW - 4479 1.66 0.0735 0.035 Actual/360 Yes No
PW - 4319 1.52 0.0735 0.035 Actual/360 Yes No
PW - 6025 1.31 0.0735 0.035 Actual/360 Yes No
PW - 2358 1.6 0.0735 0.035 Actual/360 Yes No
PW - 2064 1.33 0.0735 0.035 Actual/360 Yes No
PW - 6329 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4709 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4625 1.66 0.0735 0.035 Actual/360 Yes No
PW - 3886 1.53 0.0735 0.035 Actual/360 Yes No
PW - 3268 1.07 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 4355 1.68 0.0735 0.035 Actual/360 Yes No
PW - 6265 1.36 0.0735 0.035 Actual/360 Yes No
PW - 3265A
PW - 3265B
PW - 3265 1.59 0.0735 0.035 Actual/360 Yes No
PW - 1481 1.22 0.0735 0.035 Actual/360 Yes No
PW - 4345 1.62 0.0735 0.035 Actual/360 Yes No
PW - 3146 1.78 0.0735 0.035 Actual/360 Yes No
PW - 3821 1.61 0.0735 0.035 Actual/360 Yes No
PW - 3322 1.31 0.0735 0.035 Actual/360 Yes No
PW - 4629 1.38 0.0735 0.035 Actual/360 Yes No
PW - 2969 1.37 0.0735 0.035 Actual/360 Yes No
PW - 3615 1.61x 0.0735 0.035 Actual/360 Yes No
PW - 7098 1.54 0.0735 0.035 Actual/360 Yes No
PW - 4467 2.67 0.0735 0.035 Actual/360 No No
PW - 2346 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4048 1.22 0.0735 0.035 Actual/360 Yes No
PW - 3185 1.08 0.0735 0.035 Actual/360 Yes Yes Yes
PW - 3736 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2233 1.32 0.0735 0.035 Actual/360 No No
PW - 3714 1.46 0.0735 0.035 Actual/360 Yes No
PW - 5668 1.35 0.0735 0.035 Actual/360 Yes No
PW - 3035 1.34 0.0735 0.035 Actual/360 Yes No
PW - 5994A
PW - 5994B
PW - 5994C
PW - 5994 1.21 0.0735 0.035 Actual/360 Yes No
PW - 1623 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3329 1.38 0.0735 0.035 Actual/360 Yes No
PW - 6314 1.36 0.0735 0.035 Actual/360 Yes No
PW - 4008 1.65 0.0735 0.035 Actual/360 No No
PW - 4112 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4762 1.65 0.0735 0.035 Actual/360 Yes No
PW - 4674 1.44 0.0735 0.035 Actual/360 Yes No
PW - 3463 2.05 0.0735 0.035 Actual/360 Yes No
PW - 6021 1.63 0.0735 0.035 Actual/360 Yes No
PW - 4896 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3666 1.4 0.0735 0.035 Actual/360 Yes No
PW - 6022 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3901 1.47 0.0735 0.035 Xxxxxx/000 Xx Xx
XX - 0000X
XX - 0000X
PW - 3563C
PW - 3563D
PW - 3563 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3709 1.82 0.0735 0.035 Actual/360 Yes No
PW - 4553 1.97 0.0735 0.035 Actual/360 Yes No
PW - 7313 1.37 0.0735 0.035 Actual/360 Yes No
PW - 1586 1.4 0.0735 0.035 Actual/360 Yes No
PW - 3466 3.07 0.0735 0.035 Actual/360 Yes No
PW - 1596 1.38 0.0735 0.035 Actual/360 Yes No
PW - 4153 1.88 0.0735 0.035 Actual/360 Yes No
PW - 5025 1.47 0.0735 0.035 Actual/360 Yes No
PW - 3286 1.35 0.0735 0.035 Actual/360 Yes No
PW - 1777 1.67 0.0735 0.035 Actual/360 Yes No
PW - 6112 1.63 0.0735 0.035 Actual/360 Yes No
PW - 6414 1.51 0.0735 0.035 Actual/360 Yes No
PW - 3686 1.95 0.0735 0.035 Actual/360 Yes No
PW - 2526 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3076 1.59 0.0735 0.035 Actual/360 Yes No
PW - 5083 1.24 0.0735 0.035 Actual/360 Yes No
PW - 4678 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3426 1.48 0.0735 0.035 Actual/360 Yes No
PW - 3893 1.5 0.0735 0.035 Actual/360 Yes No
PW - 2443 1.33 0.0735 0.035 Actual/360 Yes No
PW - 4991 1.25 0.0735 0.035 Actual/360 Yes No
PW - 3545A
PW - 3545B
PW - 3545 1.6 0.0735 0.035 Actual/360 Yes No
PW - 3616 2.21 0.0735 0.035 Actual/360 Yes No
PW - 3968 1.3 0.0735 0.035 Xxxxxx/000 Xx Xx
XX - 0000 1.58 0.0735 0.035 Actual/360 Yes No
PW - 3807 1.2 0.0735 0.035 Actual/360 Yes No
PW - 6377 1.32 0.0735 0.035 Actual/360 Yes No
PW - 3970 1.49 0.0735 0.035 Actual/360 Yes No
PW - 3093 1.43 0.0735 0.035 Actual/360 Yes No
PW - 3031 1.67 0.0735 0.035 Actual/360 Yes No
PW - 3687 2.16 0.0735 0.035 Actual/360 Yes No
PW - 2799 1.73 0.0735 0.035 Actual/360 Yes No
PW - 7134A
PW - 7134B
PW - 7134 1.28 0.0735 0.035 Actual/360 Yes No
PW - 7133 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3570 1.75 0.0735 0.035 Actual/360 Yes No
PW - 3176 1.56 0.0735 0.035 Actual/360 Yes No
PW - 4546 1.31 0.0735 0.035 Actual/360 Yes No
PW - 7021 1.27 0.0735 0.035 Actual/360 Yes No
PW - 3214 1.39 0.0735 0.035 Actual/360 Yes No
PW - 4426 1.51 0.0735 0.035 Actual/360 Yes No
PW - 4897 1.55 0.0735 0.035 Actual/360 Yes No
PW - 2903 1.25 0.0735 0.035 Actual/360 Yes No
PW - 2495 1.24 0.0735 0.035 Actual/360 Yes No
PW - 3618 1.57 0.0735 0.035 Actual/360 Yes No
PW - 1445 1.28 0.0735 0.035 Actual/360 Yes No
PW - 4309 2.78 0.0735 0.035 Actual/360 Yes No
PW - 4038 1.4 0.0735 0.035 Actual/360 Yes No
PW - 4614 1.89 0.0735 0.035 Actual/360 Yes No
PW - 3619 4.01 0.0735 0.035 Actual/360 Yes No
PW - 4371 1.53 0.0735 0.035 Actual/360 Yes No
PW - 5254 1.29 0.0735 0.035 Actual/360 Yes No
PW - 3515 1.42 0.0735 0.035 Actual/360 Yes No
PW - 1663 1.48 0.0735 0.035 Actual/360 Yes No
PW - 5947 1.4 0.0735 0.035 Actual/360 Yes No
EXHIBIT B
OFFICER'S CERTIFICATE OF XXXXX XXXXXX REAL ESTATE SECURITIES INC.
In connection with the sale, assignment and transfer of certain
mortgage loans (collectively, the "Mortgage Loans") by Xxxxx Xxxxxx Real Estate
Securities Inc. (the "Mortgage Loan Seller") to PaineWebber Mortgage Acceptance
Corporation V (the "Purchaser") pursuant to the Mortgage Loan Sale Agreement
dated as of _____, 1999 (the "Mortgage Loan Sale Agreement") between the
Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale Agreement are true and correct in all
material respects at and as of the date hereof with the same effect as if
made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the Mortgage
Loan Sale Agreement and satisfied all the conditions on its part required
under the Mortgage Loan Sale Agreement to be performed or satisfied at a
prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 7th day of June 1999.
XXXXX XXXXXX REAL ESTATE SECURITIES INC.
By: __________________________
Name:
Title:
B-1
EXHIBIT C
[Letterhead of Xxxxx Xxxxxx Real Estate Securities Inc.]
June 7, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of June 1, 1999
between PaineWebber Mortgage Acceptance Corporation V and Xxxxx Xxxxxx
Real Estate Securities Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Xxxxx Xxxxxx Real Estate Securities Inc., a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the Company
to PaineWebber Mortgage Acceptance Corporation V of various commercial and
multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement (the
"Agreement"). Terms used herein, but not otherwise defined herein, shall have
the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of ______, and I express no
opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a [foreign] corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company has
taken all necessary action to authorize the execution, delivery and
performance of the Agreement by it, and the Agreement has been duly
authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms of
the Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by public policy considerations,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of
the provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement 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, to my knowledge,
any agreement or instrument to which the Company is a party or by which
it is bound, or any order or decree applicable to the Company, 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 the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, 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 under the Agreement.
6. To my knowledge, 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 or compliance by the Company with the
Agreement or the consummation of the transactions contemplated by the
Agreement, other than those which have been obtained by the Company.
This opinion is furnished solely for the benefit of the addressees
hereof in connection with the transaction referred to herein. This letter may
not be relied upon, used, quoted, circulated or otherwise referred to by any
other person or for any other purpose without my prior written approval. This
opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
Schedule A
Xxxxx Xxxxxx Real Estate Securities Inc.
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc One Mortgage Capital Markets, LLC
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
PaineWebber Incorporated
1285 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investor Services
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ABN Amro Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
C-4
EXHIBIT D
EXHIBIT D
---------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO
------------------------------------------------------------
EACH MORTGAGE LOAN
------------------
The following are exceptions to the representations and warranties made
by the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Section 3.2(b) of this Agreement. The item number indicates the subsection
number where such representation or warranty appears in Section 3.2(b) of this
Agreement.
(xiv) Existing Indebtedness
Mortgage Loan Nos. PW-3076, PW-3466, PW-5668 permit the related
Borrower to maintain subordinate financing secured by a lien on an interest in
the related Mortgaged Property that was in existence on the date of origination
of the related Mortgage Loan. Each lender of such subordinate indebtedness has
entered into a subordination and standstill agreement. The amount of the
subordinate debt for each such Mortgage Loan is as follows:
---------------------------------------------------------------------
LOAN NO. PROPERTY NAME SUBORDINATED DEBT SECURED AMOUNT
---------------------------------------------------------------------
PW-3076 Travelodge South $175,000
---------------------------------------------------------------------
PW-3466 Adobe Inn $3,502,593
---------------------------------------------------------------------
PW-5668 9000 Professional Center $1,300,000
---------------------------------------------------------------------
(xv) No Additional Indebtedness.
Mortgage Loan No. PW-4035 permits the related Borrower to incur future
indebtedness secured by a subordinate lien on the related Mortgaged Property
subject to the following conditions: (a) the gross amount of such subordinate
indebtedness does not exceed $1,000,000, (b) the aggregate debt service payments
due under the subordinate debt and this Mortgage Loan does not exceed a minimum
DSCR of 1.25:1, (c) the aggregate LTV does not exceed 80%, (d) the intercreditor
agreement grants the Mortgage Loan Seller a priority lien and prohibits the
future lender from taking any enforcement action without the consent of the
Mortgage Loan Seller and (e) there is no event of default.
Mortgage Loan No. PW-3766 permits the related Borrower to maintain
subordinate financing that is not secured by the related Mortgaged Property and
that is an amount not in excess of $500,000 in each case. The subordinate debt
is unconditionally subordinate to the related Mortgage Loan until one year after
the Mortgage Loan has been fully satisfied.
(xxix) Recorded Instruments.
D-1
With respect to Mortgage Loan Nos. PW-4817, PW-4818, PW-4819, the
recording taxes are not paid because of utilization of the Indemnification Deed
of Trust structure.
(xlvii) Additional Insurance.
The following table sets forth the Mortgage Loans which did not have
insurers which were rated at least "A:X" by AM Best or "A" by Standard & Poor's
Rating Services. In some cases, only one insurer (either the insurer for the
liability coverage or the one for property coverage) for the Mortgage Loan was
not rated adequately.
----------------------------------------------------------------------------
Loan No. Property Insurance Liability Insurance
----------------------------------------------------------------------------
AM Best S & P AM Best S & P
----------------------------------------------------------------------------
PW-4371 AVIII Bbpi A:IX A-
----------------------------------------------------------------------------
(li) Credit Tenant Loans.
(A) & (O) With respect to Mortgage Loan Nos. PW-2804, PW-3185,
PW-3825, and PW-3879, there is a balloon payment due at maturity of the related
Credit Lease; provided, however, that the Borrower has obtained and is obligated
to maintain a residual value insurance policy with respect to each such Credit
Lease. The residual value insurance policy covering Mortgage Loan Nos. PW-2804
and PW-3185 is provided by R.V.I. American Insurance Company, which has a claims
paying ability rating of A by each of Standard & Poor's Ratings Services and
Fitch IBCA, Inc. The residual value insurance policy covering Mortgage Loan Nos.
PW-3825 and PW-3879 is provided by Financial Structures Limited, which has a
claims paying ability rating of AA- by Standard and Poor's and an insurer
financial strength rating of Aa3 by Xxxxx'x Investors Services.
(C) With respect to Mortgage Loan Nos. PW-1696, PW-2804,
PW-3185, PW-3268, and PW-3879, the Borrower has certain obligations under the
Credit Tenant Lease.
(D) With respect to Mortgage Loan Nos. PW-1696, PW-3185 and
PW-3268, the Tenant on the Credit Lease has rental abatement rights.
(K) With respect to Mortgage Loan Nos. PW-1696 and PW-3268,
the representation is true and correct except that the Tenant on the Credit
Lease is not in occupancy of the Mortgaged Property.
(lvi) Mortgage Loans Not Originated by Mortgage Loan Seller.
With respect to one Mortgage Loan (C-2550 Days Inn Eastgate):
D-2
(B) the Mortgage Loan Seller acquired the Mortgage Loan from
Aries Capital Incorporated ("Aries"), with which the Mortgage Loan Seller has an
on-going, standing relationship. To the Mortgage Loan Seller's knowledge, Aries
originated the Mortgage Loan and initially assigned the Mortgage Loan at the
time of closing to Xxxxx Xxxxxx Mortgage Capital Group, Inc., which had provided
the initial funding for the Mortgage Loan. To the Mortgage Loan Seller's
knowledge, Xxxxx Xxxxxx Mortgage Capital Group, Inc. subsequently re-assigned
the Mortgage Loan to Aries. Aries, in turn, assigned the Mortgage Loan to the
Mortgage Loan Seller;
(D) the Mortgage Loan was originated by Aries Capital
Incorporated ("Aries"), with which the Mortgage Loan Seller has an on-going,
standing relationship. Notwithstanding the foregoing, and to the Mortgage Loan
Seller's knowledge, the Mortgage Loan was initially funded at the time of
closing by Xxxxx Xxxxxx Mortgage Capital Group, Inc., to which the Mortgage Loan
was initially assigned at closing by Aries. The Mortgage Loan Seller
subsequently funded the purchase of the Mortgage Loan from Aries. The funds were
disbursed in accordance with the loan sale agreement by and between the Mortgage
Loan Seller and Aries, an escrow instruction letter and settlement statement,
which provided, in part, for the purchase price of the Mortgage Loan to be
disbursed to Xxxxx Xxxxxx Mortgage Capital Group, Inc. (less outstanding
payments due under the Mortgage Loan Documents), and included an additional
advance to be made to the borrower pursuant to an "earn-out" provision contained
in the Mortgage Loan Documents.
D-3
EXHIBIT E
List of Credit Tenant Loans, Residual Value and Lease Enhancement
-----------------------------------------------------------------
Policies and Bondable Leases
----------------------------
------------------------------------------------------------------------------------------------------------------------------------
LESSEE/GUARANTOR LEASE TYPE LEASED
RATINGS (S&P /MOODYS) (BONDABLE, CUT OFF APPRAISED
LOAN ID PROPERTY NAME/LOCATION PROPERTY TYPE CASUALTY/CONDEMNAT BALANCE VALUE
ONLY, NNN, NN)
------------------------------------------------------------------------------------------------------------------------------------
1696 Kmart - Xxxxx - Xxxxx, PR BB+/Bal CTL - retail NN 8,664,604.07 9,500,000
------------------------------------------------------------------------------------------------------------------------------------
3268 Tandy - East Hanover - East A-/Baal CTL - retail NN 2,769,932.10 4,700,000
Hanover, NJ
------------------------------------------------------------------------------------------------------------------------------------
3825 XXxxxxx Xxxxxxx, Inc. - Chaska MN BB+/Bal CTL - mixed use Bondable 14,875,023.74 15,400,000
------------------------------------------------------------------------------------------------------------------------------------
2804 Xxxxxxx Transit, Inc. - Las Vegas, Shadow Rated* CTL - office NN 4,742,905.11 5,210,000
NV
------------------------------------------------------------------------------------------------------------------------------------
3879 Regal Cinemas, Inc., - BB-/Ba3** CTL - retail NN 7,911,958.72 8,200,000
Fredericksburg, VA
------------------------------------------------------------------------------------------------------------------------------------
3185 Eckerd - Palm Beach - Palm Beach, NR/Baa2(Sr. CTL - retai l NN 2,259,986.77 2,640,000
FL Subordinate)
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
*Shadow ratings are not necessarily by S&P or Moodys
------------------------------------------------------------------------------------------------------------------------------------
**S&P's rating of Regal Cinemas is an issuer credit rating. Moodys' rating of Regal Cinemas is a senior
implied issuer rating
------------------------------------------------------------------------------------------------------------------------------------
E-1
SCHEDULE I
SCHEDULE I
----------
List of Agreements under which the Mortgage Loan Seller
acquired rights in the Mortgage Loans as provided in
Section 3.7 of this Agreement
Mortgage Loan Purchase Agreement dated as of September 11, 1997 by and between
ValuExpress II, Inc. and Xxxxx Xxxxxx Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated August, 1998, by and between ARIES
Capital Incorporated and Xxxxx Xxxxxx Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated as of April 24, 1998 by and between Xxxxx
Xxxxxx Real Estate Securities Inc. and SPARKS Financial Group, Inc.
Mortgage Loan Purchase Agreement dated as of January 28, 1999, by and between
HSA/Wexford Banc Group, LLC and Xxxxx Xxxxxx Real Estate Securities Inc.
Mortgage Loan Purchase Agreement dated as of July 28, 1998, by and between Xxxxx
Xxxxxx Real Estate Securities Inc. and IPI Commercial Corp.
Mortgage Loan Purchase Agreement dated as of December 11, 1998 by and between
Xxxxx Xxxxxx Real Estate Securities Inc. and Standard Mortgage Corporation.
Mortgage Loan Purchase Agreement dated as of June 26, 1998, by and between Xxxxx
Xxxxxx Real Estate Securities Inc. and WordCook Inc.
Mortgage Loan Purchase Agreement dated as of July 1, 1998, by and between
Suburban Capital Markets, Inc. and Xxxxx Xxxxxx Real Estate Securities Inc.
