EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") dated as of
November 1, 1999, is between Xxxxxxx Xxxxx Mortgage Investors Inc., 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"), together with certain mortgage loans (the "Other
Mortgage Loans") purchased by the Purchaser pursuant to the Other Mortgage Loan
Purchase Agreements (as defined herein), the 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 November 1, 1999, by and among Xxxxxxx Xxxxx
Mortgage Investors Inc., as depositor (the "Depositor"), ORIX Real Estate
Capital Markets, LLC, as master servicer (the "Master Servicer"), ORIX Real
Estate Capital Markets, LLC, as special servicer (the "Special Servicer"), and
Norwest Bank Minnesota, National Association, as trustee (in such capacity, the
"Trustee"). 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 Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and PaineWebber Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
November 4, 1999. The Purchaser intends to sell certain of the Certificates (the
"Publicly Offered Certificates") to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and PaineWebber Incorporated (in such capacity, the "Underwriters")
on the Closing Date pursuant to an underwriting agreement (the "Underwriting
Agreement") dated as of November 1, 1999. The transactions contemplated by the
foregoing are 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:
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ARTICLE I.
DEFINITIONS
Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the Pooling and Servicing Agreement.
"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 Other Mortgage Loans sold to the Purchaser by Xxxxxxx Xxxxx
Mortgage Capital, Inc. and ORIX Real Estate Capital Markets, LLC pursuant to the
Other Mortgage Loan Purchase Agreements, or as otherwise separately agreed upon
in writing by the Purchaser, the Mortgage Loan Seller, Xxxxxxx Xxxxx Mortgage
Capital, Inc. and ORIX Real Estate Capital Markets, LLC.
"Closing Date": November 4, 1999.
"Cut-Off Date": November 1, 1999.
"Initial Pool Balance": An amount equal to approximately $592,445,159.
"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.
"Mortgage File": The meaning ascribed to such term in the Pooling and
Servicing Agreement, except that the endorsement referenced in clauses (i),
(iv), (v) and (viii) may be in blank.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.3 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 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
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and warranties made by the Mortgage Loan Seller in this Agreement as to "each
Mortgagor" are given with respect to the obligor.
"Other Mortgage Loan Purchase Agreement": Either(i) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between Xxxxxxx
Xxxxx Mortgage Capital, Inc. and the Purchaser, or (ii) that certain mortgage
loan purchase agreement, dated as of November 1, 1999, by and between ORIX Real
Estate Capital Markets, LLC and the Purchaser.
"Pooling and Servicing Agreement": The Pooling and Servicing Agreement,
dated and effective as of November 1, 1999, among Purchaser, Master Servicer,
Special Servicer and Trustee
"Prospectus Supplement": That certain prospectus supplement, dated October
29, 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
(iv) all reasonable out-of-pocket expenses reasonably incurred or to
be incurred by the Master Servicer, the Special Servicer, the Depositor or
the Trustee in respect of the Breach or Document Defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Term Sheet": The Structural and Collateral Term Sheet dated October
15, 1999 in respect of the Securitization Transaction.
ARTICLE II.
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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.
(b) The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 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
$170,308,084 (the "Purchase Price") in immediately available funds, which
represents the purchase price of the Mortgage Loans (with accrured interest) net
of $778,655 which, subject to Section 5.1 hereof, represents the Mortgage Loan
Seller's Allocable Share of the expenses incurred in connection with the
Securitization Transaction.
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) The Purchaser hereby
directs the Mortgage Loan Seller and the Mortgage Loan Seller hereby agrees to
deliver to
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each of the Trustee, the Custodian, the Master Servicer and the Special Servicer
(x) all documents, instruments and agreements required to be delivered by the
Purchaser to such parties pursuant to Section 2.01 of the Pooling and Servicing
Agreement, and meeting all the requirements of Section 2.01 of the Pooling and
Servicing Agreement, and (y) such other documents, instruments and agreements
relating to the Mortgage Loans as the Purchaser, the Trustee, the Custodian, the
Master Servicer and the Special Servicer may reasonably request.
(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 required to be recorded or filed prior to the Closing Date
and to be delivered as part of a Mortgage File on or before the Closing Date,
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
the 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 a
Mortgage 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 the 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 a Mortgage by the 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
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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 assignments
of documents and/or instruments that do not contain the recording information
for the related documents and/or instruments, as applicable, if such documents
and/or instruments have 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). The delivery of an original pro forma or
specimen title insurance policy or an original marked, redated and recertified
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf no later than
the 90th day following the Closing Date.
(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 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 of an instrument and/or
document enumerated in clauses (ii), (iii), (iv), (v) and (viii) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement and each
UCC-3 to the Trustee 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. In connection with the Mortgage Loan Seller's
delivery of Mortgage Loan documents in accordance with the preceding sentences,
the Mortgage Loan Seller hereby authorizes the Trustee as the transferee of the
Purchaser to complete each endorsement or assignment in blank appearing thereon
in favor of the Trustee in such manner as the Trustee shall determine in the
exercise of its sole discretion in its capacity as Trustee under the Pooling and
Servicing Agreement (provided that such endorsement or assignment will be
without recourse, representation or warranty to the Mortgage Loan Seller except
as expressly set forth in this Agreement). If 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
its Custodian or its agent shall notify the Mortgage Loan Seller of same. The
Mortgage Loan Seller shall cure such defect within 90 days or the Purchaser may
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 or to file any UCC-3 in those jurisdictions where, in
the written
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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 Master Servicer on or before the Closing Date.
(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 Master 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. Pursuant to Section 2.02 and 2.03
of the Pooling and Servicing Agreement, if the Purchaser or an assignee thereof,
which may include the Trustee or the Custodian on its behalf, discovers or
receives notice of a Document Defect or a Breach (each as defined in the Pooling
and Servicing Agreement), the Mortgage Loan Seller shall correct or cure any
such Document Defect or Breach or repurchase or substitute such Defective
Mortgage Loan in accordance with Section 3.3 of this Agreement.
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
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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 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
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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;
(v) Mortgage Files in Possession. The Mortgage Loan Seller or its
custodian 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 makes the representations and warranties attached
hereto as Schedule I (subject to the exceptions set forth in Exhibit D) with
respect to each Mortgage Loan, as of the date specified therein or, if no such
date is specified, as of the Closing Date.
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
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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) relate only to the Mortgage Loans
conveyed hereunder and 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 Defect (as defined in
the Pooling and Servicing Agreement) exists, or (ii) a Breach (as defined in the
Pooling and Servicing Agreement) has occurred with respect to any Mortgage Loan
which, in the case of either clause (i) or (ii), materially and adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein, the party discovering the existence of such Document
Defect or Breach with respect to such Mortgage Loan (a "Defective Mortgage
Loan") shall give prompt written notice thereof to each of the parties to the
Pooling and Servicing Agreement and the Mortgage Loan Seller.
Within 90 days of the earlier of its discovery or its receipt of notice of
any such Defective Mortgage Loan (or in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions, no later than 90 days following the date on which any
party to the Pooling and Servicing Agreement discovers such Document Defect or
Breach), the Mortgage Loan Seller shall cure such Document Defect or Breach in
all material respects, which shall include payment of losses and any expenses
associated therewith, or, if such Document Defect or Breach cannot be cured
within such 90-day period, either (i) repurchase the affected Mortgage Loan at
the applicable Repurchase Price not later than the end of such 90-day period, or
(ii) substitute a Qualified Substitute Mortgage Loan for such affected Mortgage
Loan and pay to the Trustee, for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith no later than the end of
such 90-day period. Notwithstanding the above, if such Document Defect or Breach
is capable of being cured but not within such 90-day period, such Document
Defect or Breach does not relate to the Mortgage Loan not being treated as a
"qualified mortgage" within the meaning of the REMIC Provisions, and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Document Defect or Breach within such 90-day period, such Mortgage Loan
Seller shall have an additional 90-days to complete such cure (or, failing such
cure, to repurchase the related Mortgage Loan); provided, however, that with
respect to such additional 90 day period, the Mortgage Loan Seller shall have
delivered to the Trustee, the Master Servicer 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
Document Defect or Breach, that describes the reasons that a cure was not
effected within the first 90-day cure period, what actions the Mortgage Loan
Seller is pursuing in connection with the cure
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thereof, the actions it proposes to take to effect such cure, and which states
that it anticipates such Document Defect or Breach will be cured within the
additional 90-day period.
If the affected Mortgage Loan is to be repurchased, 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
Master Servicer as agent for the Trustee. If the affected Mortgage Loan is to be
substituted, (I) the Mortgage Loan Seller shall, on the date of substitution,
remit the Substitution Shortfall Amount by wire transfer of immediately
available funds in accordance with the directions of the Master Servicer as
agent for the Trustee; (II) no such substitution may be made in any calendar
month after the Determination Date for such month; (III) the Mortgage Loan
Seller shall, on the date of substitution, certify in writing to the Trustee and
the Master Servicer that the Qualified Substitute Mortgage Loan(s) meets all of
the requirements of the definition of "Qualified Substitute Mortgage Loan" in
the Pooling and Servicing Agreement and that the representations and warranties
set forth in Section 3.2 hereof are true and correct with respect to the
Mortgage Loan Seller and such Qualified Substitute Mortgage Loan(s) (which
includes a mortgage loan schedule describing such Qualified Substitute Mortgage
Loan(s) substantially in the form of Exhibit A)) and shall agree with the
Trustee in writing to be subject to the terms and provisions of this Agreement
with respect to such Qualified Substitute Mortgage Loan(s) as of the date of
substitution; (IV) scheduled payments of principal and interest due with respect
to any such Qualified Substitute Mortgage Loan after the related date of
substitution shall be part of the Trust Fund; and (V) scheduled payments of
principal and interest due with respect to any such Qualified Substitute
Mortgage Loan on or prior to the related date of substitution shall not be part
of the Trust Fund, and the Mortgage Loan Seller shall be entitled to receive
such payments promptly following receipt thereof by the Master Servicer as the
agent of the Trustee.
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 or substitute
for 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 or substitution 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 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) with respect to
a Defective Mortgage Loan, 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.
11
(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(b) of the Pooling and Servicing Agreement, the Master
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 Master
Servicer and the Special Servicer, as the case may be, shall be reimbursed for
the reasonable costs of such enforcement in accordance with the Pooling and
Servicing Agreement.
3.4. [Intentionally Omitted].
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 II 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.
ARTICLE IV.
12
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 Shearman & Stearling, 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) each of the Other Mortgage Loan Purchase Agreements have been
duly executed and delivered;
(vii) such other documents, certificates and opinions as may be
necessary to secure for the Certificates the ratings from Standard &
Poor's Ratings Services, a division of The McGraw Hill Companies, Inc.
("Standard & Poor's") and Duff & Xxxxxx Credit Rating Co. ("DCR") set
forth in Clause (viii) of this Section 4.1(b);
(viii) Letters from Standard & Poor's and DCR showing the following
ratings: for (i) the Class A-1 and Class A-2 Certificates, a "AAA" rating
from each of Standard & Poor's and DCR, (ii) the Class B Certificates, a
"AA" rating from each of Standard & Poor's and DCR, (iii) the Class C
Certificates, a "A" rating from each of
13
Standard & Poor's and DCR, (iv) the Class D Certificates, a "A-" rating
from each of Standard & Poor's and DCR, (v) the Class E Certificates, a
"BBB" rating from each of Standard & Poor's and DCR, (vi) the Class F
Certificates, a "BBB-" rating from each of Standard & Poor's and DCR,
(vii) the Class IO Certificates, a "AAAr" and "AAA" rating from Standard &
Poor's and DCR, respectively, (viii), the Class G Certificates, a "BB"
rating from each of Standard & Poor's and DCR, (ix) the Class H
Certificates, a "B" rating from each of Standard & Poor's and DCR, and (x)
the Class J Certificates, a "B-" rating from each of Standard & Poor's and
DCR.
(ix) a letter from the independent accounting firm of Deloitte &
Touche LLP 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, of the Purchaser's compliance with all of the
Purchaser's obligations under this Agreement.
14
ARTICLE V.
MISCELLANEOUS
5.1. Costs. If, pursuant to Section 2.2, the amounts deducted by the
Purchaser in respect of the Mortgage Loan Seller's Allocable Share of
transaction expenses from the purchase price of the Mortgage Loans are
subsequently determined to be less than or greater than the actual amounts owed
to the Purchaser by the Mortgage Loan Seller with respect thereto, the Mortgage
Loan Seller shall promptly reimburse the Purchaser or its designee for the
amount of such deficiency, or the Purchaser shall refund, or cause to be
refunded, to the Mortgage Loan Seller the amount of such excess, as the case may
be.
5.2. Indemnification and Contribution: (a) The Mortgage Loan Seller
shall indemnify and hold harmless the Purchaser and the Underwriters, the
directors, officers, employees and agents of the Purchaser and the Underwriters,
and each person who controls the Purchaser and the Underwriters 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 Preliminary Prospectus Supplement dated October 15, 1999
(the "Preliminary Prospectus Supplement"), the Prospectus Supplement, the
Memorandum, the Term Sheet, or in any amendment thereof or supplement thereto
(such amendment or supplement which has been reviewed by the Mortgage Loan
Seller) (collectively, the "Disclosure Documents"), 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 or the Underwriters 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 of 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 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 (i) the manipulation, (ii)
15
any calculations based upon, or (iii) 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 the 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
3.2 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 furnished to the Purchaser by
the Mortgage Loan Seller relating to the Mortgage Loans, (iv) reports of site
inspections of the related Mortgaged Properties furnished to the Purchaser by
the Mortgage Loan Seller relating to the Mortgage Loans, (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, underwriting
standards of the Mortgage Loan Seller and the Mortgage Loan Seller set forth in
the Disclosure Documents, and (vii) any computer diskettes, computer tapes
and/or other electronic media furnished to the Purchaser by the Mortgage Loan
Seller relating to the Mortgage Loans containing (A) the information on the
Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided by the Mortgage Loan Seller 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
Disclosure Documents, any Computational Materials, Collateral Term Sheets, ABS
Term Sheets, and/or Structural Term Sheets, 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
16
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. This indemnity 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 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) above, representing the indemnified parties under
subsection (a) above 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).
Unless it shall assume the defense of any proceeding, the
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party or parties from and against any loss or
liability by reason of such settlement or judgment. If the indemnifying party
assumes the defense of any proceeding, it shall be entitled to settle such
proceeding with the consent of
17
the indemnified party of parties in connection with all claims which have been
asserted against the indemnified party or parties in such proceeding by the
other parties to such settlement, and shall be entitled to settle such
proceeding without the consent of the indemnified party or parties so long as
such settlement (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of an indemnified party.
(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 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
18
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, except
that the parties intend that the provisions of 5-1401 of the New York General
Obligations Law shall apply to this Agreement.
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.
(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 Xxxxxxx Xxxxx
Mortgage Investors Inc., World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, 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.
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.
19
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
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]
20
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.
XXXXXXX XXXXX MORTGAGE
INVESTORS INC., as Purchaser
By: /s/ Xxxxxxx X. XxXxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Authorized Signatory
XXXXX XXXXXX REAL ESTATE
SECURITIES, INC., as Mortgage Loan Seller
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
S-1
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Mortgage Loan Schedule MLMI 1999-C1
Control No. Property Name Property Type Address
---------------------------------------------------------------------------------------------------------------
XX-0000 Xxxxxx Xxxxx Retail 000-000 Xxxxxx Xxxxxx Xxxxx
XX-0000 Xxxxxxxxx Apartments Multifamily 0000 Xxxxxxx Xxxxxx
XX-0000 Shadowbrook Apartments Multifamily 0000 Xxxxxxxx Xxxxxxx
XX-0000 000-000 Xxxxxxxx Multifamily 000-000 Xxxxxxxx
XX-0000 Xxxxxxxxxxxx/Xxxxxxxxxxxx Office Portfolio Office Various
XX-0000X Xxxxxx Xxxxxx Office Building Office 0000 Xxxxxx Xxxxxx
PW-6482B Xxxxxx Xxxx Xxxxxxxx Xxxxxx 0000 Xxxxxx Xxxx
PW-6482C Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxx
PW-6482D Henderson Drive Office Building Office 0000 Xxxxxxxxx Xxxxx
XX-0000 The Xxxxx at Frenchman's Creek Multifamily 0000 00xx Xxxxxx Xxxxx
XX-0000 Xxxxxxxx City Industrial Industrial 0000-0000 Xxxx Xxxxxxxxxx 00
XX-0000 Xxxxxxxxxxxxxxx Manor MHP Mobile Home Park East Avenue & Xxxxxxx Drive
PW-7127 0000-0000 Xxxxx Xxxx Industrial 0000-0000 Xxxxx Xxxx
XX-0000 Xxx Xxxxx Business Park Industrial 000 Xxxx Xxx Xxxxx Xxxxxxxxx
XX-0000 Summercreek Apartments Multifamily 00000 Xxxxxx Xxxxx
XX-0000 Xxxxxxxxx Towers Multifamily 000 Xxxx Xxxxxx Xxxxxx
XX-0000 Xxxxxxxxxxx Apartments Multifamily 2430-2444 Xxxxxxxxx Xxxx
XX-0000 X'Xxxxxx Xxxxx Apartments Multifamily 000 Xxxx 0xx Xxxxxx
XX-0000 Xxxxx Xxxx MHPs Mobile Home Park Various
PW-7312A Plaza MHP Mobile Home Park 0000 X. Xxxxx Xxxxxxx
XX-0000X Xxxxxx Xxxxxx MHP Mobile Home Park 000 Xxxxx Xxxxx 00
XX-0000X Xxxxx MHP Mobile Home Park 16 Xxx Xxxx
PW-7395 Red Lion Apartments Multifamily 0000 Xxxxxx Xxxx Xxxx
XX-0000 St. Xxxx Beach Apartments Multifamily 0000-0000 Xxxxx Xxxx Xxxx
XX-0000 000 X. Xxxxx Xxxxxx Office 000 X. Xxxxx Xxxxxx
XX-0000 Peachtree Village Mobile Home Park Mobile Home Park 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.
PW-7781 Xxxxxxxx Xxxx Apartments Multifamily 0000 Xxxxxxxx Xxxx
XX-0000 Lexus Training Center Industrial 000 Xxxxxxxxx Xxxx
XX-0000 Blue Cross Blue Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx
XX-0000 1399 Madison Building Office 1399 Madison Ave.
PW-8028 Tops Appliance Building Retail 0000-0000 Xxxx Xxxxx
XX-0000 Office Max Retail 000 Xxxx Xxxxxxxx Xxxxxxxxx
XX-0000 First American Building Office 0000 Xxxxxxxx Xxxxxxx
XX-0000 Crossings Apartments Multifamily 0000 Xxxxxxx 000 Xxxxxxxx
XX-0000 Helix Building Industrial 0000 Xxxx Xxxxxx Xxxx, Xxxx. X
PW-8703 Virginia Apartment Portfolio Multifamily Various
PW-8703A Norport Apartments Multifamily 0 Xxxxxxxx Xxxxx
XX-0000X Colonial Court Multifamily 00 Xxxxxxxx Xxxxx
XX-0000X Xxx Xxxx Multifamily 000 Xxxxxx Xxxxxx
XX-0000X Xxxxx Xxxxx Apartments Multifamily 000X 00xx Xxxxxx
XX-0000 Xxxx Xxxxx Mall Retail 0000 X. Xxxxxxx 00
XX-0000 Xxxxxxx Xxxxx Retail 000-000 X. Xxxxx Xxxxxx
XX-0000 Pepperwood Apartments Multifamily 13725 Xxxxxxxxx Court
PW-8763 Sunset Hills Apartments Multifamily 0000 Xxxxxxxxx Xxxx
XX-0000 Xxxxxxxxx Xxxxxx Office 732 & 000 Xxxxxxxxx Xxxxxx
XX-0000 Eckerd's Building Industrial 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
XX-0000 000 Xxxxxxx Xxxx Retail 000 Xxxxxxx Xxxx
Cut-Off Date
Control No. Property Name City State Zip Code Balance
---------------------------------------------------------------------------------------------------------------------------------
XX-0000 Xxxxxx Xxxxx Xxxxxx XX 00000 1,893,937.21
XX-0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 6,390,041.56
XX-0000 Xxxxxxxxxxx Xxxxxxxxxx Xxx Xxxxxxx XX 00000 6,388,722.18
PW-6437 000-000 Xxxxxxxx Xxxxxxx XX 00000 935,927.32
PW-6482 Fayetteville/Jacksonville Office Portfolio Fayetteville & Jacksonville NC Various 3,255,995.77
PW-6482A Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
PW-6482B Xxxxxx Xxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
PW-6482C Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
PW-6482D Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxxx XX 00000
PW-7043 The Xxxxx at Xxxxxxxxx'x Xxxxx Xx. Xxxxxxxxxx XX 00000 5,878,000.82
PW-7064 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxx Xxxx XX 00000 2,496,097.90
PW-7119 Washingtonville Manor MHP Xxxxxxxxxxxxxxx XX 00000 1,498,747.13
PW-7127 0000-0000 Xxxxx Xxxx Xxxxx XX 00000 1,023,566.60
PW-7130 Xxx Xxxxx Xxxxxxxx Xxxx Xxxxxx XX 00000 1,690,332.98
XX-0000 Xxxxxxxxxxx Xxxxxxxxxx Xxx Xxxxxxx XX 00000 4,317,857.36
PW-7146 Xxxxxxxxx Xxxxxx Xxxx Xxxxx XX 00000 2,084,258.71
XX-0000 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxxx XX 00000 1,544,810.71
PW-7170 X'Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxx XX 00000 797,212.52
XX-0000 Xxxxx Xxxx XXXx Xxxx, Xxxxxx & Chillicothe OH Various 2,045,560.57
XX-0000X Xxxxx XXX Xxxx XX 00000
XX-0000X Xxxxxx Xxxxxx XXX Xxxxxx XX 00000
PW-7312C Xxxxx MHP Xxxxxxxxxxx XX 00000
PW-7395 Xxx Xxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000 2,247,635.94
XX-0000 Xx. Xxxx Xxxxx Xxxxxxxxxx Xx. Xxxx Xxxxx XX 00000 948,325.95
PW-7562 000 X. Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 6,690,462.65
PW-7710 Xxxxxxxxx Xxxxxxx Xxxxxx Xxxx Xxxx Xxxxxx XX 00000 1,920,704.91
PW-7781 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxx XX 00000 721,000.99
PW-7789 Lexus Training Center Xxxxxxxxxx XX 00000 3,048,754.08
PW-7905 Xxxx Xxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxxxx XX 00000 25,288,017.24
PW-7958 0000 Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000 2,099,239.59
PW-8028 Tops Appliance Building Xxxxxxxx XX 00000 6,789,386.28
XX-0000 Xxxxxx Xxx Xxxxxxxx XX 00000 4,792,696.69
XX-0000 Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxx XX 00000 18,568,200.18
XX-0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx XX 00000 3,645,729.56
XX-0000 Xxxxx Xxxxxxxx Xxx Xxxxx XX 00000 2,195,846.37
XX-0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxx XX Various 17,374,118.66
XX-0000X Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
XX-0000X Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000
PW-8703C Xxx Xxxx Xxxxxxxxxxx XX 00000
PW-8703D Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxx XX 00000
PW-7942 Bend Xxxxx Xxxx Xxxx XX 00000 8,490,237.26
XX-0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 6,094,764.50
XX-0000 Xxxxxxxxxx Xxxxxxxxxx Xxxxx XX 00000 999,392.88
PW-8763 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000 6,343,510.01
PW-7790 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000 3,898,646.39
XX-0000 Xxxxxx'x Xxxxxxxx Xxxxxxxxx XX 00000 3,698,575.34
PW-6232 000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxx XX 00000 2,050,000.00
P&I Payment Remaining Remaining
Control No. Property Name (monthly) Gross Rate Term (mos) Amort (mos)
------------------------------------------------------------------------------------------------------------------------------
XX-0000 Xxxxxx Xxxxx 13,941.53 8.000% 114 354
XX-0000 Xxxxxxxxx Apartments 47,184.20 8.050% 117 357
PW-6376 Shadowbrook Apartments 48,983.86 8.450% 116 356
PW-6437 000-000 Xxxxxxxx 7,474.35 8.350% 000 000
XX-0000 Xxxxxxxxxxxx/Xxxxxxxxxxxx Xxxxxx Portfolio 26,282.61 8.500% 117 297
XX-0000X Xxxxxx Xxxxxx Office Building
PW-6482B Xxxxxx Xxxx Xxxxxxxx
XX-0000X Xxxxxxxxx Road Office Building
PW-6482D Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
XX-0000 The Xxxxx at Frenchman's Creek 43,218.73 8.000% 000 000
XX-0000 Xxxxxxxx Xxxx Industrial 19,756.85 8.800% 116 356
PW-7119 Washingtonville Manor MHP 11,547.45 7.970% 119 299
PW-7127 0000-0000 Xxxxx Xxxx 7,808.84 8.400% 117 357
XX-0000 Xxx Xxxxx Xxxxxxxx Xxxx 12,952.40 7.850% 114 294
PW-7141 Summercreek Apartments 31,470.67 7.900% 115 355
XX-0000 Xxxxxxxxx Towers 15,907.17 8.400% 116 356
XX-0000 Xxxxxxxxxxx Apartments 12,272.81 8.300% 116 296
PW-7170 O'Connor Place Apartments 6,906.34 9.350% 115 000
XX-0000 Xxxxx Xxxx MHPs 14,757.35 7.800% 116 356
XX-0000X Xxxxx XXX
XX-0000X Xxxxxx Xxxxxx MHP
PW-7312C Xxxxx MHP
PW-7395 Red Lion Apartments 16,903.50 8.250% 000 000
XX-0000 Xx. Xxxx Xxxxx Apartments 7,271.04 8.450% 116 356
PW-7562 000 X. Xxxxx Xxxxxx 54,150.93 9.050% 116 356
PW-7710 Peachtree Village Mobile Home Park 13,724.48 7.700% 000 000
XX-0000 Xxxxxxxx Xxxx Apartments 6,129.40 9.125% 116 296
PW-7789 Lexus Training Center 22,913.63 8.250% 119 359
PW-7905 Blue Cross Blue Shield Building 183,003.73 7.850% 000 000
XX-0000 0000 Xxxxxxx Xxxxxxxx 16,221.66 8.550% 119 359
PW-8028 Tops Appliance Building 53,738.64 8.800% 116 356
PW-8064 Office Max 35,639.86 8.125% 117 357
PW-8202 First American Building 138,992.60 8.200% 118 358
PW-8313 Crossings Apartments 26,401.72 7.850% 000 000
XX-0000 Xxxxx Xxxxxxxx 16,979.96 8.000% 118 298
PW-8703 Virginia Apartment Portfolio 130,109.28 8.200% 117 357
XX-0000X Xxxxxxx Apartments
XX-0000X Xxxxxxxx Xxxxx
XX-0000X Xxx Xxxx
XX-0000X Xxxxx Xxxxx Xxxxxxxxxx
XX-0000 Xxxx River Mall 61,896.60 7.920% 118 358
XX-0000 Xxxxxxx Xxxxx 46,264.39 8.350% 118 358
XX-0000 Xxxxxxxxxx Apartments 8,529.34 9.200% 000 000
XX-0000 Xxxxxx Xxxxx Apartments 48,152.57 8.350% 000 000
XX-0000 Xxxxxxxxx Xxxxxx 30,403.20 8.650% 000 000
XX-0000 Xxxxxx'x Xxxxxxxx 28,187.99 8.400% 119 359
PW-6232 000 Xxxxxxx Xxxx 15,908.24 8.600% 120 360
Maturity Date Ground Balloon/Hyperam/
Control No. Property Name ARD Date Lease Fully Amort
-----------------------------------------------------------------------------------------------------------------
PW-6045 Xxxxxx Xxxxx 0/0/00 Xx Xxxxxxx
XX-0000 Xxxxxxxxx Apartments 8/1/09 No Balloon
PW-6376 Shadowbrook Apartments 7/1/09 No Balloon
PW-6437 000-000 Xxxxxxxx 6/1/09 No Balloon
PW-6482 Fayetteville/Jacksonville Office Portfolio 8/1/09 See below Balloon
XX-0000X Xxxxxx Xxxxxx Office Building
PW-6482B Xxxxxx Xxxx Xxxxxxxx
XX-0000X Xxxxxxxxx Road Office Building
PW-6482D Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
XX-0000 The Xxxxx at Frenchman's Creek 7/1/09 No Balloon
PW-7064 Oklahoma City Industrial 7/1/09 No Balloon
PW-7119 Washingtonville Manor MHP 10/1/09 No Balloon
PW-7127 0000-0000 Xxxxx Xxxx 8/1/09 No Balloon
XX-0000 Xxx Xxxxx Xxxxxxxx Xxxx 5/1/09 No Balloon
PW-7141 Summercreek Apartments 6/1/09 No Balloon
PW-7146 Xxxxxxxxx Xxxxxx 0/0/00 Xx Xxxxxxx
XX-0000 Xxxxxxxxxxx Apartments 7/1/09 No Balloon
PW-7170 O'Connor Place Apartments 6/1/09 No Balloon
PW-7312 Plaza Park MHPs 7/1/09 See below Balloon
XX-0000X Xxxxx XXX Xx
XX-0000X Xxxxxx Xxxxxx MHP No
PW-7312C Xxxxx MHP No
PW-7395 Red Lion Apartments 9/1/09 No Balloon
PW-7424 St. Xxxx Beach Apartments 7/1/09 No Balloon
PW-7562 000 X. Xxxxx Xxxxxx 7/1/09 No Balloon
PW-7710 Peachtree Village Mobile Home Park 7/1/09 No Balloon
XX-0000 Xxxxxxxx Xxxx Apartments 7/1/09 No Balloon
PW-7789 Lexus Training Center 10/1/09 No Hyperam
PW-7905 Blue Cross Blue Shield Building 10/1/09 No Hyperam
PW-7958 1399 Madison Building 10/1/09 No Hyperam
PW-8028 Tops Appliance Building 7/1/09 No Hyperam
PW-8064 Office Max 8/1/09 No Hyperam
PW-8202 First American Building 9/1/09 No Hyperam
PW-8313 Crossings Apartments 9/1/09 No Balloon
PW-8352 Helix Building 9/1/09 No Balloon
PW-8703 Virginia Apartment Portfolio 8/1/09 See below Balloon
PW-8703A Norport Apartments No
PW-8703B Colonial Court No
PW-8703C Xxx Xxxx No
XX-0000X Xxxxx Xxxxx Xxxxxxxxxx Xx
XX-0000 Xxxx River Mall 9/1/09 No Balloon
XX-0000 Xxxxxxx Xxxxx 9/1/09 No Balloon
PW-8085 Pepperwood Apartments 10/1/09 No Balloon
PW-8763 Sunset Hills Apartments 9/1/09 No Balloon
XX-0000 Xxxxxxxxx Xxxxxx 10/1/09 No Hyperam
PW-8694 Eckerd's Building 10/1/09 No Balloon
PW-6232 000 Xxxxxxx Xxxx 11/1/09 No Hyperam
Sub Master Mortgage
Control No. Property Name Servicing fees Servicing fees Loan Seller Subservicer
--------------------------------------------------------------------------------------------------------------------------------
XX-0000 Xxxxxx Xxxxx incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxxxx Apartments incl. In Master 0.070 PWRES ORIX
PW-6376 Shadowbrook Apartments incl. In Master 0.070 PWRES ORIX
PW-6437 000-000 Xxxxxxxx incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxxxxxxx/Xxxxxxxxxxxx Office Portfolio incl. In Master 0.070 PWRES ORIX
XX-0000X Xxxxxx Xxxxxx Office Building
PW-6482B Xxxxxx Xxxx Xxxxxxxx
XX-0000X Xxxxxxxxx Road Office Building
PW-6482D Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
XX-0000 The Xxxxx at Frenchman's Creek incl. In Master 0.070 PWRES ORIX
PW-7064 Oklahoma City Industrial incl. In Master 0.070 PWRES ORIX
PW-7119 Washingtonville Manor MHP incl. In Master 0.070 PWRES ORIX
PW-7127 0000-0000 Xxxxx Xxxx incl. In Master 0.070 PWRES ORIX
XX-0000 Xxx Xxxxx Xxxxxxxx Xxxx incl. In Master 0.070 PWRES ORIX
PW-7141 Summercreek Apartments incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxxxx Towers incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxxxxxx Apartments incl. In Master 0.070 PWRES ORIX
PW-7170 O'Connor Place Apartments incl. In Master 0.070 PWRES ORIX
PW-7312 Plaza Park MHPs incl. In Master 0.070 PWRES ORIX
XX-0000X Xxxxx XXX
XX-0000X Xxxxxx Xxxxxx MHP
PW-7312C Xxxxx MHP
PW-7395 Red Lion Apartments incl. In Master 0.070 PWRES ORIX
XX-0000 Xx. Xxxx Xxxxx Apartments incl. In Master 0.070 PWRES ORIX
PW-7562 000 X. Xxxxx Xxxxxx incl. In Master 0.070 PWRES ORIX
PW-7710 Peachtree Village Mobile Home Park incl. In Master 0.070 PWRES ORIX
PW-7781 Xxxxxxxx Xxxx Apartments incl. In Master 0.070 PWRES ORIX
PW-7789 Lexus Training Center incl. In Master 0.070 PWRES ORIX
PW-7905 Blue Cross Blue Shield Building incl. In Master 0.070 PWRES ORIX
PW-7958 1399 Madison Building incl. In Master 0.070 PWRES ORIX
PW-8028 Tops Appliance Building incl. In Master 0.070 PWRES ORIX
PW-8064 Office Max incl. In Master 0.070 PWRES ORIX
PW-8202 First American Building incl. In Master 0.070 PWRES ORIX
PW-8313 Crossings Apartments incl. In Master 0.070 PWRES ORIX
PW-8352 Helix Building incl. In Master 0.070 PWRES ORIX
PW-8703 Virginia Apartment Portfolio incl. In Master 0.070 PWRES ORIX
PW-8703A Norport Apartments
XX-0000X Xxxxxxxx Xxxxx
XX-0000X Xxx Xxxx
XX-8703D Xxxxx Xxxxx Xxxxxxxxxx
XX-0000 Bend River Mall incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxx Xxxxx incl. In Master 0.070 PWRES ORIX
PW-8085 Pepperwood Apartments incl. In Master 0.070 PWRES ORIX
PW-8763 Sunset Hills Apartments incl. In Master 0.070 PWRES ORIX
XX-0000 Xxxxxxxxx Xxxxxx incl. In Master 0.070 PWRES ORIX
PW-8694 Eckerd's Building incl. In Master 0.070 PWRES ORIX
PW-6232 000 Xxxxxxx Xxxx incl. In Master 0.070 PWRES ORIX
Interest
Control No. Property Name Defeasance Accrual Cross defaulted
------------------------------------------------------------------------------------------------
XX-0000 Xxxxxx Xxxxx Yes Actual/360 No
PW-6132 Arlington Apartments Yes Actual/360 No
PW-6376 Shadowbrook Apartments Yes Actual/360 No
PW-6437 000-000 Xxxxxxxx Yes Actual/360 No
PW-6482 Fayetteville/Jacksonville Office Portfolio Yes Actual/360 No
XX-0000X Xxxxxx Xxxxxx Office Building
PW-6482B Xxxxxx Xxxx Xxxxxxxx
XX-0000X Xxxxxxxxx Road Office Building
PW-6482D Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxxx
XX-0000 The Xxxxx at Frenchman's Creek Yes Actual/360 No
PW-7064 Oklahoma City Industrial Yes Actual/360 No
PW-7119 Washingtonville Manor MHP Yes Actual/360 No
PW-7127 0000-0000 Xxxxx Xxxx Yes Actual/360 No
XX-0000 Xxx Xxxxx Xxxxxxxx Xxxx Yes Actual/360 No
PW-7141 Summercreek Apartments Yes Actual/360 No
PW-7146 Xxxxxxxxx Towers Yes Actual/360 No
PW-7166 Cobblestone Apartments Yes Actual/360 No
PW-7170 O'Connor Place Apartments Yes Actual/360 No
PW-7312 Plaza Park MHPs Yes Actual/360 No
XX-0000X Xxxxx XXX
XX-0000X Xxxxxx Xxxxxx MHP
PW-7312C Xxxxx MHP
PW-7395 Red Lion Apartments Yes Actual/360 No
PW-7424 St. Xxxx Beach Apartments Yes Actual/360 No
PW-7562 000 X. Xxxxx Xxxxxx Yes Actual/360 No
PW-7710 Peachtree Village Mobile Home Park Yes Actual/360 No
PW-7781 Xxxxxxxx Xxxx Apartments Yes Actual/360 No
PW-7789 Lexus Training Center Yes Actual/360 No
PW-7905 Blue Cross Blue Shield Building Yes Actual/360 No
PW-7958 1399 Madison Building Yes Actual/360 No
PW-8028 Tops Appliance Building Yes Actual/360 No
PW-8064 Office Max Yes Actual/360 No
PW-8202 First American Building Yes Actual/360 No
PW-8313 Crossings Apartments Yes Actual/360 No
PW-8352 Helix Building Yes Actual/360 No
PW-8703 Virginia Apartment Portfolio Yes Actual/360 No
XX-0000X Xxxxxxx Xxxxxxxxxx
XX-0000X Colonial Court
XX-0000X Xxx Xxxx
XX-0000X Xxxxx Xxxxx Xxxxxxxxxx
XX-0000 Bend River Mall Yes Actual/360 No
XX-0000 Xxxxxxx Xxxxx Yes Actual/360 No
PW-8085 Pepperwood Apartments Yes Actual/360 No
PW-8763 Sunset Hills Apartments Yes Actual/360 No
PW-7790 Smithtown Bypass Yes Actual/360 No
PW-8694 Eckerd's Building Yes Actual/360 No
PW-6232 000 Xxxxxxx Xxxx Yes Actual/360 No
A-1
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 Xxxxxxx Xxxxx Mortgage
Investors Inc. (the "Purchaser") pursuant to the Mortgage Loan Purchase
Agreement dated as of November 1, 1999 (the "Mortgage Loan Purchase 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 Purchase 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 Purchase Agreement and satisfied all the conditions on its part
required under the Mortgage Loan Purchase 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 [__]th day of [__] 1999.
XXXXX XXXXXX REAL
ESTATE SECURITIES, INC.
By:
------------------------------------
Name:
Title:
B-1
EXHIBIT C
[Letterhead of [COUNSEL]]
[CLOSINGDATE]
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase Agreement dated as of November 1, 1999 between
Xxxxxxx Xxxxx Mortgage Investors Inc. 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 Xxxxxxx Xxxxx Mortgage Investors Inc. 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 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.
C-1
Based on the foregoing, I am of the opinion that:
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.
C-2
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.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ORIX Real Estate Capital Markets, LLC
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Xxxxxxx Xxxxx Mortgage Investors Inc.
World Xxxxxxxxx Xxxxxx
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 Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Duff & Xxxxxx Credit Rating Co.
00 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 10041
Norwest Bank Minnesota, National Association
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, 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
Schedule I of this Agreement. The item number indicates the subsection number
where such representation or warranty appears in Schedule I of this Agreement.
D-1
REVISED as of NOVEMBER 4,1999
PaineWebber Exceptions to Loan Representations and Warranties.
The following two loans are exceptions to the representation regarding "Single
Purpose Borrower":
o Loan 7781 - which has an original balance of $723,000 is not a single
purpose entity. PaineWebber did not require an SPE due to the small
balance of the mortgage loan.
o Loan 7710 - which has an original balance of $1,925,000 is not a single
purpose entity. The borrower is an individual.
The following two are exceptions to the representation regarding "No
Additional Indebtedness":
Mortgage loan 7710 and 7781 are not single purpose entities. Therefore, those
borrowers may obtain unsecured debt in the future.
The following three loans are exceptions to the representation
regarding "Environmental Matters":
o Mortgage Loan 7781 with an original balance of $723,000 did not have a
Phase I performed but instead a "Transaction Screen"
o Mortgage Loan 8085 with an original balance of $1,000,000 did not have a
Phase I performed but instead a "Transaction Screen"
The following loan is an exception to the representation regarding
"Application of Insurance and Condemnation Proceeds":
Mortgage Loan 7562 with an original balance of $6,700,000.
o PaineWebber has financed the fee interest which is subject to an operating
lease.
o Condemnation proceeds shall be first paid to the fee owner in the amount
of $3,500,000 with any remaining balance divided equally between fee owner
and the operating tenant.
o It should be noted that the appraised value of the property, unencumbered
by the operating lease, is $50,000,000.
The following loan is an exception to the representation regarding
"ground leases": Mortgage Loan 7958 with an original balance of $2,100,000.
o Lender has a lien on both the fee and the leasehold estates. The "ground
lease" extends 15 years beyond the Anticipated Repayment Date.
********************************************************************************
The following loan is an exception to the representation regarding "ground lease
rent acceleration":
Mortgage Loan 7958 with an original balance of $2,100,000.
Lender has a lien on both the fee and the leasehold estates. The "ground lease",
which is in place as part of a tax abatement program, requires basic rent of
$100 per annum through December 31, 2010. Thereafter, basic rent has the
potential to increase as the rent required
D-2
shall be the then current real estate taxes as of December 31, 2010 less the
amount of $10,698.24.
********************************************************************************
The following loans have exceptions to the standard non-recourse
carveout language:
o The following loans do not have "warm bodies" as indemnitors for the
Environmental Indemnity Agreement: Loan 7781
********************************************************************************
The following two loans allow for a one-time pre-approved transfer:
Loan 7905 (Blue Cross Blue Shield Building) with an original loan balance of
$25,300,000
Loan 8202 (First American Building) with an original loan balance of $18,588,000
D-3
Schedule I
Schedule I
Mortgage Loan Seller's representations and warranties as to the Mortgage Loans
I-1
PaineWebber
Schedule I
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is true, complete
and accurate in all material respects as of the Cut-off Date.
(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.
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.
(iv) Legal, Prudent and Proper. (A) With respect to each Mortgage Loan
that the 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 (B) 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.
(v) 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 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). Each of
the Mortgage Note and the Mortgage is properly endorsed or assigned,
respectively, to the Purchaser (or the Trustee, as its designee) or
in blank (which the Trustee or its designee is authorized to
complete and, as applicable, to file in the appropriate filing
office) and each such endorsement or assignment, respectively, is
genuine.
(vi) No Delinquency. No monthly payment of principal of or interest on
any Mortgage Loan has been more than 30 days delinquent since
origination (without giving effect to any grace period) and as of
the Cut-off Date for
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such Mortgage Loan, no monthly payment of principal of or interest
on such Mortgage Loan is 30 or more days delinquent.
(vii) 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.
(viii) 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 rescission 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
use or operation of the Mortgaged Property, the value of the
Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage.
(ix) 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.
(x) 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.
(xi) Single-Purpose Borrower. (A) Except as set forth on Exhibit D
attached hereto, the Mortgagor is a single purpose entity, (B) the
Mortgage Loan Seller has no knowledge that the Mortgagor is not a
single purpose entity, and (C) 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, and provides that it shall not engage in any
business unrelated to such property and its financing, have any
assets other than those related to its interest in the related
Mortgaged Property or its financing, or have any
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indebtedness other than as permitted under the related Mortgage
Loan, and with respect to a Mortgagor of a Mortgage Loan in excess
of $15 million, provides that it shall maintain its own books,
records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person, conduct its
business in its own name, not guarantee or assume the debts or
obligations of any other person, not commingle its assets or funds
with those of any other person, transact business with affiliates on
an arm's length basis and hold itself out as being a legal entity,
separate and apart from any other person.
(xii) 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.
(xiii) 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 and such defeasance must otherwise comply with the
REMIC Provisions, (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, in an
amount sufficient to make all scheduled payments under the Mortgage
Note when due, as certified by a independent certified public
accountant, 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.
(xiv) REMIC Qualification. The 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 Section
1.860G-2(f)(2) that treats a defective obligation as a "qualified
mortgage" or any substantially similar successor provision) and any
and all Percentage Premiums and Yield Maintenance Charges constitute
"customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2).
(xv) Existing Indebtedness. 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.
(xvi) No Additional Indebtedness. Except as set forth in Exhibit D, the
Mortgage Loan prohibits the related Mortgagor from mortgaging or
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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.
(xvii) Annual Reports. The 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.
(xviii) Proceeds Fully Disbursed. The proceeds of the 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 (other than the initial disbursement
of proceeds) has been made by the Mortgage Loan Seller, any
affiliate or any third party originator to the related Mortgagor
(other than mezzanine debt that is set forth on Exhibit D) 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.
(xix) No Negative Amortization. Other than the ARD Loans, which may have
negative amortization from and after their respective Anticipated
Repayment Dates, the Mortgage Loan does not provide for a shared
appreciation or equity participation feature, any other contingent
or additional interest feature or the negative amortization of
interest.
(xx) Whole Loan. The Mortgage Loan is a whole loan and not a
participating interest in a mortgage loan. Neither Mortgage Loan
Seller nor any affiliate thereof has any obligation to make any
capital contributions to the Mortgagor under the Mortgage Loan other
than contributions made on or prior to the closing date.
(xxi) Cross-Collateralization. The Mortgage Loan is not
cross-collateralized with any mortgage loan that is not included in
the Trust.
(xxii) Conditions for Releases of Mortgaged Property. Except in connection
with Mortgage Loans that are cross-collateralized and Mortgage Loans
that are secured by more than one Mortgaged Property, the Mortgage
Loan does not require 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 Mortgage Loan
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or (D) substitution of government securities for such Mortgaged
Property in a defeasance complying with Treasury
Regulations Section 1.860G-2(a)(8).
(xxiii) 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).
(xxiv) 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) has
been duly authorized, executed and delivered by the Mortgage Loan
Seller, is in recordable form, as appropriate, in order to validly
and effectively convey the Mortgage Loan Seller's interest therein
to the Purchaser (or the Trustee as its assignee) and 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).
(xxv) Mortgages and Security Agreements Create First Lien. The 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
current use of the Mortgaged
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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. 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).
(xxvi) No Defenses to Payment. The Mortgage Loan is not subject to any
right of rescission, set-off, abatement, diminution, valid
counterclaim or defense (except with respect to 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) including the defense of usury, available to
the related Mortgagor with respect to such Mortgage Note, Mortgage,
Assignment of Leases and other agreements.
(xxvii) 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.
(xxviii) Customary Provisions. The 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
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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).
(xxix) Mortgagor's Interest in Mortgaged Property. The interest of the
related Mortgagor in the related Mortgaged Property consists of a
fee simple estate and/or a leasehold estate in all of the real
property constituting a part of the Mortgaged Property.
(xxx) Recorded Instruments. The Mortgage has been properly recorded in the
applicable jurisdiction and the assignment of Mortgage for each
Mortgage Loan is in recordable form for the applicable jurisdiction
and constitute the legal, valid and binding assignment of such
Mortgage Loan. The full amount of the Mortgage has been recorded on
each related Mortgaged Property, and all applicable mortgage
recording taxes have been paid.
(xxxi) 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 has been executed by the Mortgage
Loan Seller in blank which the Trustee or its designee is authorized
to complete and to file in the filing office in which such financing
statement was filed (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).
(xxxii) 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.
(xxxiii) 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.
(xxxiv) No Usury Violation; Compliance with Law. 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
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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.
(xxxv) 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 the
consent of the holder of the Mortgage Loan, the related Mortgaged
Property, or any controlling interest therein in the Mortgagor, is
directly or indirectly transferred or sold (other than transfers for
estate planning purposes, other purposes where no change of control
occurs or such transfers which have been pre-approved to transferees
which otherwise have met the Mortgage Loan Seller's underwriting
criteria) or encumbered in connection with subordinate financing
(other than any indebtedness described in clauses (xv) and (xvi)
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. The Mortgage or loan agreement
requires the obligor to pay all reasonable fees and expenses
associated with securing the consent of the holder of the Mortgage
Loan.
(xxxvi) Non-Recourse Mortgage Loan. The Loan Documents for the Mortgage Loan
provide that such Mortgage Loan is non-recourse to the related
parties thereto except for certain acts including the fraud, willful
misconduct or material misrepresentation by the related Mortgagor
and/or its affiliates, in which case, except as specified in Exhibit
D, either (A) such Mortgage Loan shall become a recourse obligation
of another person, or (B) another person shall assume liability for
any losses incurred by the Mortgage Loan Seller or its assignee due
to such acts. Additionally, the Mortgage Loan Documents for the
Mortgage Loan provide that, except as specified in Exhibit D,
another person shall assume liability for any losses incurred by the
Mortgage Loan Seller or its assignee 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.
(xxxvii) Mortgages Secured by Deeds of Trust. With respect to each Mortgage
which is a deed of trust, a trustee which, to the knowledge of the
Mortgage Loan Seller is 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
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law, and except in connection with a trustee's sale after a default
by the related Mortgagor or in connection with the release of the
related Mortgaged Property, no fees are or will become payable to
such trustee.
(xxxviii) Escrows. All amounts required to have been deposited with the
Mortgage Loan Seller by each Mortgagor under the Mortgage Loan
Documents have been deposited and are in the possession or under the
control of the Mortgage Loan Seller or its agent. 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.
(xxxix) 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 use or
operation or value of such Mortgaged Property as security for the
Mortgage Loan; the Mortgage Loan Seller has 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 use or
operation or value of such Mortgaged Property.
(xl) 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 the
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.
(xli) 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 the 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.
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(xlii) 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 use or operation or
value of the related Mortgaged Property.
(xliii) Permanent Financing. The Mortgage Loan was not originated for the
purpose of financing the construction of uncompleted improvements on
the related Mortgaged Property.
(xliv) Property Inspections. The Mortgage Loan Seller has inspected or
caused to be inspected each related Mortgaged Property within the
past twelve months.
(xlv) 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 Mortgaged Property is currently
being utilized, and is a separate tax parcel.
(xlvi) 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, 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
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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. Such policy contains no
exclusions for or affirmatively insures (except for any Mortgaged
Property located in jurisdictions where such affirmative insurance
is not available) (a) access to a public road, and (b) that the area
shown on the survey is the same as the property legally described in
the Mortgage.
(xlvii) Environmental Matters. Except as specified on Exhibit D, 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 within
12 months preceding the Closing Date, 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 has the obligation to remedy such
condition or circumstance. To the best of the Mortgage Loan Seller's
knowledge, in 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; 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
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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.
(xlviii) Additional Insurance. The 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 (or 18 months for a Mortgaged Property which
is not an office, retail, self-storage, industrial, multifamily,
mobile home park or mixed use of the foregoing) 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 canceled 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. The insurance provider of
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" from
Standard & Poor's or DCR, or its equivalent. 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.
(xlix) Application of Insurance and Condemnation Proceeds. Except as
specified in Exhibit D, and subject to clause lxi(K) with respect to
ground lease properties, 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
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with terms of the related ground lease and then in accordance with
the related Mortgage.
(l) Terms of Mortgage. The Mortgage Loan is directly secured by a
Mortgage on a commercial, industrial, self-storage, health-care
related, retail, office, fitness center, mixed use, 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, at 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).
(li) 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, 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.
(lii) [Intentionally Omitted].
(liii) [Intentionally Omitted].
(liv) ARD Loans. If such Mortgage Loan is an ARD Loan it provides that:
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(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) either (a) on the Closing Date, each ARD Loan will have a
lockbox in place, or (b) no later than the related Anticipated
Repayment Date, if it has not previously done so, the related
Mortgagor is required to enter into a "lockbox agreement"
whereby all revenue from the related Mortgaged Property shall
be deposited 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 any payment
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.
(lv) Health Care Facilities. If the Mortgage Loan is secured by a nursing
home or skilled living facility:
(A) To the best of the Mortgage Loan Seller's knowledge, the
health care facility located on the related Mortgaged Property
and the related owner and/or operator with respect to such
facility had all material certificates, licenses and permits
required by applicable law for the operation of such facility
for its current use and, to the extent that such facility
participates in Medicaid, Medicare, or any other similar third
party payor program, the facility, the owner and/or the
operator possesses current provider agreements for such
programs, appropriate for the degree of care administered at
each facility.
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(B) To the best of the Mortgage Loan Seller's knowledge, the
related owner or operator, with respect to the related
Mortgaged Property or its operation of the related Mortgaged
Property, was in compliance in all material respects with all
applicable laws, regulations, quality and safety standards and
requirements of the applicable state department of health, and
the Mortgage Loan Documents require that so long as the
Mortgage Loan remains outstanding the related Mortgaged
Property shall be operated in compliance in all material
respects with such applicable laws and requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains outstanding, the
related Mortgaged Property shall be operated in such a
manner that the licenses, permits and authorizations
shall remain in full force and effect,
(2) without the lender's consent, the licenses, permits and
authorizations may not be
(I) transferred to any location other than the
Mortgaged Property
(II) pledged as collateral for any other loan or
indebtedness
(3) so long as the related Mortgage Loan remains
outstanding, the Mortgagor may not without the lender's
consent
(I) rescind, withdraw, revoke, amend, modify,
supplement or otherwise alter the nature or scope
of the certificates, licenses and permits for the
related Mortgaged Property.
(II) amend or otherwise reduce the related Mortgaged
Property's authorized bed capacity and/or the
number of beds approved by the applicable state
department of health,
(III) replace or transfer all or any part of any related
Mortgaged Property's beds to an other site or
location or
(IV) terminate, materially modify, or materially amend
the operating lease or management contract in
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effect with regard to the related Mortgaged
Property.
(4) the licenses, permits and authorizations are held free from
restrictions or known conflicts which would materially impair
the use or operation of the Mortgaged Property, and are not
provisional, probationary or restricted in any way.
(D) since origination, the Mortgage Loan Seller has not received
notice that the related owner or related operator as the case
may be, has failed to file within the time permitted,
including any extensions thereof, all such Medicare, Medicaid
or other similar program cost reports;
(E) since origination, the Mortgage Loan Seller has not received
notice that either the related owner or operator, as the case
may be, with respect to the related Mortgaged Property, or its
operation of such Mortgaged Property, (A) is subject to a
material audit adjustment with respect to its participation in
any third-party payor program or (B) has been notified that
any managed care or other third-party payor program contract
is being or has been canceled, not renewed, or downgraded in
any material respect or that any such action is pending,
threatened, or contemplated.
(lvi) [Intentionally Omitted].
(lvii) 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:
(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
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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.
(lviii) 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.
(lix) 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. No foreclosure action or other
form of enforcement is or has been threatened or commenced with
respect to any Mortgage.
(lx) 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.
(lxi) Ground Leases. Except as specified in Exhibit D, 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;
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(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 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) Except as indicated on Exhibit D hereto, 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 20 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 (xv), (xvi) and
(xxv)) and provides that it shall remain prior to any mortgage
or other lien on 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 (and such notice has been given), 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 (or its assignee)
unless a copy has been given to the Mortgage Loan Seller (or
its assignee) 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
I-19
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, and all rights of the
Mortgagor under such ground lease may be exercised by or on
behalf of the mortgagee.
(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 its assignee 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
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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.
(M) Except as set forth in Exhibit D, the ground lease does not
permit any increase in the amount of rent payable by the
lessee thereunder during the term of the Mortgage Loan.
(lxii) Servicing. No person other than the Mortgage Loan Seller has been
granted or conveyed the right to service the Mortgage Loan or to
receive any consideration in connection therewith.
(lxiii) Borrower Concentration. As of the Closing Date, not more than 5% of
the aggregate outstanding principal amount of the Mortgage Loans
have the same Mortgagor or to the Mortgage Loan Seller's best
knowledge, have Mortgagors that are affiliates of each other.
(lxiv) Due Dates. The Mortgage Loan has a late charge which may be assessed
prior to the 15th day of the month.
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Schedule II
Schedule II
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
Section 3.7
Schedule 2
PW Loan #C- Property Name Correspondent Date of MLPA
----------- ------------- ------------- -------------
7562 000 X. Xxxxx Xxxxxx Aries Capital, Incorporated Aug-98
8763 Sunset Hills Apartments Aries Capital, Incorporated Aug-98
0000 Xxxxxxxxx Xxxxxx Aries Capital, Incorporated Aug-98
0000 Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxx Funding Corporation 28-Jun-99
6132 Arlington Apartments Love Funding Corporation 23-Apr-99
6376 Shadowbrook Apartments Love Funding Corporation 23-Apr-99
7064 Oklahoma City Industrial Love Funding Corporation 23-Apr-99
8085 Pepperwood Apartments Suburban Capital Markets, Inc. 01-Jul-98
0000 X'Xxxxxx Xxxxx Apartments Suburban Capital Markets, Inc. 01-Jul-98
7424 St. Xxxx Beach Apartments ValuExpress II, LLC 16-Sep-97
7146 Xxxxxxxxx Towers ValuExpress II, LLC 16-Sep-97
7166 Cobblestone Apartments ValuExpress II, LLC 16-Sep-97
7942 Bend River Mall Xxxx Xxxx, Inc. 26-Jun-98
8703 Virginia Apartment Portfolio HSA/Wexford Bancgroup, LLC 29-Jan-99
