EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 21, 2005 (this
"Agreement"), is entered into between Xxxxxxx Xxxxx Mortgage Lending, Inc. (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 2005 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc., as master servicer (in such capacity, the "Master Servicer"),
Clarion Partners, LLC, as special servicer (in such capacity, the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
March 21, 2005 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative
of Banc of America Securities LLC ("Banc of America"), KeyBanc Capital Markets,
a Division of McDonald Investments Inc. ("McDonald Investments"), X.X. Xxxxxx
Securities Inc. ("JPMorgan") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"; Xxxxxxx Xxxxx, Banc of America, McDonald Investments, JPMorgan and
Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (such Certificates, the
"Publicly-Offered Certificates"). The Purchaser has also entered into a
Certificate Purchase Agreement, dated as of March 21, 2005 (the "Certificate
Purchase Agreement"), with Xxxxxxx Xxxxx, for itself and as representative of
Banc of America (together in such capacity, the "Initial Purchasers"), whereby
the Purchaser will sell to the Initial Purchasers all of the remaining
Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
$724,539,913 (the "Merrill Mortgage Loan Balance") (subject to a variance of
plus or minus 5.0%) as of the close of business on the Cut-off Date, after
giving effect to any payments due on or before such date, whether or not such
payments are received. The Merrill Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-off Date
(after giving effect to any payments due on or before such date, whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-off Date Pool Balance") of $1,137,261,494 (subject to a variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans shall take place
on March 29, 2005 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 101.3477% of the
Merrill Mortgage Loan Balance as of the Cut-off Date, plus (ii) $3,215,777,
which amount represents the amount of interest accrued on the Merrill Mortgage
Loan Balance at the related Net Mortgage Rate for the period from and including
the Cut-off Date up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Consideration, the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will have,
on behalf of the Purchaser, delivered to the Trustee on or before the Closing
Date, the documents and instruments specified below with respect to each
Mortgage Loan (each, a "Mortgage File"). All Mortgage Files so delivered will be
held by the Trustee in escrow at all times prior to the Closing Date. Each
Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note for such Mortgage Loan,
including any power of attorney related to the execution thereof (or a lost
note affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached
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thereto (without recourse, representation or warranty, express or implied)
to the order of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MKB2, Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, or in blank;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with originals
or copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with evidence
of recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
and any missing recording information or a certified copy of that assignment
as sent for recording), of (a) the Mortgage, (b) any related Assignment of
Leases (if such item is a document separate from the Mortgage) and (c) any
other recorded document relating to the Mortgage Loan otherwise included in
the Mortgage File, in favor of LaSalle Bank National Association, as trustee
for the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MKB2,
Commercial Mortgage Pass-Through Certificates, Series 2005-MKB2, or in
blank;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan (to the extent not already assigned pursuant to clause (iv)
above) in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MKB2, Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, or in blank;
(vi) originals or copies of any consolidation, assumption, substitution
and modification agreements in those instances where the terms or provisions
of the Mortgage or Mortgage Note have been consolidated or modified or the
subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC
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Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, a UCC Financing
Statement assignment, in form suitable for filing in favor of LaSalle Bank
National Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through Certificates,
Series 2005-MKB2, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt related
to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or reserve
agreement, any security agreement, any management agreement, any agreed upon
procedures letter, any lockbox or cash management agreements, any
environmental reports or any letter of credit, in each case relating to such
Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor comfort
letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee and that is referred to in clause (viii) of the definition
of "Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Trustee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
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The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and the 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 transactions
contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been
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taken in connection therewith, and (assuming the due authorization,
execution and delivery hereof by the Purchaser) this Agreement constitutes
the valid, legal and binding agreement of the Seller, enforceable against
the Seller in accordance with its terms, except as such enforcement may be
limited by (A) laws relating to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Seller or its properties or might
have consequences that would materially and adversely affect its performance
hereunder.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent of
any third person to the execution of this Agreement or the performance by
the Seller of its obligations under this Agreement (except to the extent
such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement
or the consummation of the transactions contemplated by this Agreement
except as have previously been obtained, and no bulk sale law applies to
such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the
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Seller's ability to perform its duties and obligations under this Agreement
or materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Seller, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would, in the Seller's good faith and reasonable judgment, prohibit its
entering into this Agreement or materially and adversely affect the validity
of this Agreement or the performance by the Seller of its obligations under
this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will ---- report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal to
the Purchase Consideration. The consideration received by the Seller upon
the sale of the Mortgage Loans to the Purchaser will constitute at least
reasonably equivalent value and fair consideration for the Mortgage Loans.
The Seller will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the Mortgage Loans to the Purchaser. The
Seller is not selling the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the interests of
the Certificateholders therein, cure such Document Defect or Breach, as the case
may be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Collection Account, any Substitution Shortfall Amount in
connection therewith; provided, however, that, unless the breach would cause the
Mortgage Loan
7
not to be a Qualified Mortgage, if such Document Defect or Breach is capable of
being cured but not within such 90-day period and the Seller has commenced and
is diligently proceeding with the cure of such Document Defect or Breach within
such 90-day period, the Seller shall have an additional 90 days to complete such
cure (or, failing such cure, to repurchase or substitute the related Mortgage
Loan (which, for purposes of such repurchase or substitution, shall include an
REO Loan)); and provided, further, that with respect to such additional 90-day
period, the Seller shall have delivered an officer's certificate to the Trustee
setting forth the reason such Document Defect or Breach is not capable of being
cured within the initial 90-day period and what actions the Seller is pursuing
in connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that no Document Defect (other than with respect
to a Specially Designated Mortgage Loan Document) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach materially
and adversely affects the value of the related Mortgage Loan or the interests of
the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), and is not cured as provided for above, shall require the repurchase or
substitution of all such Crossed Loans unless (1) the weighted average debt
service coverage ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less than
the weighted average debt service coverage ratio for all such Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters immediately
preceding such repurchase or substitution, and (2) the weighted average loan
to-value ratio for the remaining Crossed Loans determined at the time of
repurchase or substitution based upon an appraisal obtained by the Special
Servicer at the expense of the Seller shall not be greater than the weighted
average loan-to-value ratio for all such Crossed Loans, including the affected
Crossed Loan determined at the time of repurchase or substitution based upon an
appraisal obtained by the Special Servicer at the expense of the Seller;
provided, that if such debt service coverage and loan-to-value criteria are
satisfied and any Crossed Loan (that is not the Crossed Loan directly affected
by the subject Breach or Document Defect) is not so materially and adversely
affected and therefore is not so repurchased or substituted, then such Crossed
Loan shall be released from its cross-collateralization and cross-default
provision so long as such Crossed Loan (that is not the Crossed Loan directly
affected by the subject Breach or Document Defect) is held in the Trust Fund;
and provided, further, that the repurchase or replacement of less than all such
Crossed Loans and the release of any Crossed Loan from a cross-collateralization
and cross-default provision shall be subject to the delivery by the Seller to
the Trustee, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release would not cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions; and provided, further, that the Controlling Class
Representative shall have consented to the repurchase or replacement of the
affected Crossed
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Loan, which consent shall not be unreasonably withheld. For a period of two
years from the Closing Date, so long as there remains any Mortgage File relating
to a Mortgage Loan as to which there is any uncured Document Defect or Breach
known to the Seller, the Seller shall provide, once every ninety days, the
officer's certificate to the Trustee described above as to the reasons such
Document Defect or Breach remains uncured and as to the actions being taken to
pursue cure; provided, however, that, without limiting the effect of the
foregoing provisions of this Section 3(c), if such Document Defect or Breach
shall materially and adversely affect the value of such Mortgage Loan or the
interests of the holders of the Certificates therein (subject to the last
proviso in the second preceding sentence), the Seller shall in all cases on or
prior to the second anniversary of the Closing Date either cause such Document
Defect or Breach to be cured or repurchase or substitute for the affected
Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to
issue a policy of lender's title insurance as described in representation 8 set
forth on Schedule I hereto in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect or Breach
with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of the
other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. Notwithstanding the foregoing, if a Crossed Loan is modified to
terminate the related cross-collateralization and/or cross-default provisions,
the Seller shall furnish to the Trustee an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy for a breach of representation 30 set forth on Schedule
I hereto shall be the cure of such breach by the Seller, which cure shall be
effected through the payment by the Seller of such costs and expenses (without
regard to whether such costs and expenses are material or not)
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specified in such paragraph that have not, at the time of such cure, been
received by the Master Servicer or the Special Servicer from the related
Mortgagor and not a repurchase of the related Mortgage Loan. To the extent any
fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price (as defined
in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as
applicable, in the Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loan(s).
(e) This Section 3 provides the sole remedy available to the Purchaser,
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of 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 transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
10
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Purchaser, threatened against the Purchaser in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or other governmental agency or body, which default might have consequences that
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or might have consequences that would materially and
adversely affect its performance hereunder.
11
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) A letter from the independent accounting firm of Ernst & Young LLP
in form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of March 21, 2005, among the
Seller, Bank of America, N.A., KeyBank National Association, the Purchaser, the
Underwriters and the Initial Purchasers. Both parties agree to use their best
efforts to perform their respective obligations hereunder in a manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of March 1, 2005,
between the Seller and KeyCorp Real Estate Capital Markets, Inc., duly executed
by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the
12
Initial Purchasers may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part that are required under
this Agreement to be performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omit to state therein a material fact necessary
in order to make the statements therein relating to the Mortgage Loans, in light
of the circumstances under which they were made, not misleading, and (ii) such
officer has carefully examined the Specified Portions of the Private Placement
Memorandum, dated as of March 21, 2005 (the "Memorandum") (pursuant to which
certain classes of the Private Certificates are being privately offered) and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Prospectus Supplement (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and, without
limitation, exclusive of any statements in such sections that purport to
describe the servicing and administration provisions of the Pooling and
Servicing Agreement): "Summary of Prospectus
13
Supplement-- Relevant Parties--Mortgage Loan Sellers," "Summary of Prospectus
Supplement-- The Mortgage Loans And The Mortgaged Real Properties," "Risk
Factors" and "Description of the Mortgage Pool". The "Specified Portions" of the
Memorandum shall consist of the Specified Portions of the Prospectus Supplement
(as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of Delaware not earlier than thirty (30) days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both the
Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding between the Seller and the Purchaser with respect to the
transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the UCC of the
applicable jurisdiction; (ii) the conveyance provided for in Section 2 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller's right, title and interest in and to the Mortgage
Loans, and all amounts payable to the holder of the Mortgage Loans in accordance
with the terms thereof, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the
14
Purchaser as contemplated by Section 1 hereof shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Trustee or any of its agents, including, without limitation, the Custodian,
of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the UCC of the applicable jurisdiction; and (v)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from persons (other than the Trustee)
holding such property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the secured party for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the
Mortgage Loans, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of this Agreement and the Pooling and Servicing
Agreement. The Seller does hereby consent to the filing by the Purchaser of
financing statements relating to the transactions contemplated hereby without
the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
15
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party that obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party that commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement,
16
including, without limitation, any defined terms therein, unless the Seller has
consented to such amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 20. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Lending, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X Xxxxxxx
Title: Executive Vice President, Chief Officer
in Charge of Commercial Mortgage
Securitization
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
MLML MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in March 2005 without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in March 2005,
without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding upon
the title insurer); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the related
Mortgage File, an Assignment of Leases (either as a separate instrument or as
part of the Mortgage) that relates to and was delivered in connection with each
Mortgage Loan and that establishes and creates a valid, subsisting and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
I-2
amendments or supplements thereto included in the related Mortgage File) has not
been impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part. With respect to each Mortgage Loan, since the later
of (a) March 4, 2005 and (b) the closing date of such Mortgage Loan, the Seller
has not executed any written instrument that (i) impaired, satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified or altered
any material term of such Mortgage Loan, (iii) released the Mortgaged Property
or any material portion thereof from the lien of the related Mortgage, or (iv)
released the related Mortgagor from its obligations under such Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding sentence does not
relate to any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if
I-3
it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee as sole insured without the consent of or notice to
the insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). None of
the Mortgage Loan documents contains any provision that expressly excuses the
related Mortgagor from obtaining and maintaining insurance coverage for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release of
the related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable
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state law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "Environmental Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve (12) months
prior to the date hereof, (c) a copy of each such Environmental Report has been
delivered to the Purchaser, and (d) either: (i) no such Environmental Report, if
any, reveals that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor impaired property environmental insurance policy
and each such policy is noncancellable during its term, is in the amount at
least equal to 125% of the principal balance of the Mortgage Loan, has a term
ending no sooner than the date which is five years after the maturity date of
the Mortgage Loan to which it relates and either does not provide for a
deductible or the deductible amount is held in escrow and all premiums have been
paid in
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full. Each Mortgagor represents and warrants in the related Mortgage Loan
documents that except as set forth in certain environmental reports and to 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. The related Mortgagor (or affiliate thereof) has agreed to
indemnify, defend and hold the Seller and its successors and assigns harmless
from and against any and all losses, liabilities, damages, injuries, penalties,
fines, out-of-pocket expenses and claims of any kind whatsoever (including
attorneys' 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.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as a
whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged
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Property constitutes a manufactured housing community. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as a special flood hazard area
(Zone A or Zone V), and flood insurance was available, a flood insurance policy
meeting the requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property. All such hazard and flood
insurance policies contain a standard mortgagee clause for the benefit of the
holder of the related Mortgage, its successors and assigns, as mortgagee, and
are not terminable (nor may the amount of coverage provided thereunder be
reduced) without at least ten (10) days' prior written notice to the mortgagee;
and no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the insurer for all
of the required coverages set forth herein has a claims paying ability or
financial strength rating from S&P or Xxxxx'x of not less than A-minus (or the
equivalent), or from A.M. Best Company of not less than "A-minus: V" (or the
equivalent) and, if rated by Fitch, of not less than "A-" from Fitch (or the
equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the related mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan documents for each Mortgage Loan
provide that proceeds paid under any such casualty insurance policy will (or, at
the lender's option, will) be applied either to the repair or restoration of all
or part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining after
the repair or restoration of the related Mortgaged Property or payment of
amounts due under the Mortgage Loan; and provided, further, that, if the related
Mortgagor holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder to
be encumbered by the related Mortgage; and there has been no material change
in the terms of such Ground Lease since its recordation, with the exception
of material changes reflected in written instruments which are a part of the
related Mortgage File; and if required by such Ground Lease, the lessor
thereunder has received notice of the lien of the related Mortgage in
accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or
I-8
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee under such Mortgage
Loan unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of any
such default, before the lessor thereunder may terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds (other than de
minimis amounts for minor casualties) with respect to the leasehold interest
will be applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds as the repair or
restoration progresses (except in such cases where a provision entitling
another party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage lender), or (ii)
to the payment of the
I-9
outstanding principal balance of the Mortgage Loan together with any accrued
interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting which
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended or modified
without the prior written consent of the mortgagee under such Mortgage Loan,
and (ii) any such action without such consent is not binding on such
mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and may
be compounded monthly and shall be payable only after the outstanding principal
of such Mortgage Loan is paid in full, and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the
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related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Crossed Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
I-12
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or caused
the inspection of, the related Mortgaged Property within the preceding twelve
(12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers by devise or descent or by operation of law upon death,
transfers of less than a controlling interest in the Mortgagor, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Mortgagor,
transfers among affiliated Mortgagors with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
I-13
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter into a lockbox arrangement
on the ARD Loan whereby all revenue from the related Mortgaged Property shall be
deposited directly into a designated account controlled by the applicable Master
Servicer.
39. Security Interests. A UCC financing statement has been filed and/or
recorded, or submitted for filing and/or recording, in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more UCC financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a UCC financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its Stated Maturity Date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements
I-14
pertaining thereto, no Person has been granted or conveyed the right to service
any Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor, or an entity controlled by a principal of such Mortgagor for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation proceeds. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured by a
Ground Lease and is the subject of representation 18, the interest of the
related Mortgagor in the Mortgaged Property securing each Mortgage Loan is a fee
simple interest in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Mortgagor, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent monthly
payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Mortgagor of the default.
I-15
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor impaired property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure
or deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the 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,
or a letter from the appraiser, states that such appraisal satisfies 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.
53. Origination of the Mortgage Loans. The Seller originated all of the
Mortgage Loans.
I-16
Annex A (to Schedule I)
Exceptions to the Representations and Warranties
Representation #4 - Lien; Valid Assignment
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Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Lodgian Hotel Portfolio #3 The Permitted Encumbrances for certain Mortgaged
Properties are also subject to the related Ground
Lease terms.
----------------------------------------------------------------------------------------------------------------------
Representation #6 - Mortgage Status; Waivers and Modifications
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Forest Park Plaza Pursuant to the Mortgage Loan documents, the
initial Mortgagor has assigned tenant-in-common
interests in the Property to various tenants in
common, which have assumed the obligations under
the Loan Documents and the principals of which
have executed Indemnity and Guaranty Agreements
limited to the acts of the tenant in common entity
of which such indemnitor is a principal.
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Lodgian Hotel Portfolio #3 The Mortgage Loan has been modified pursuant to a
Loan Modification Agreement and Amendments to the
Mortgages, each dated as of March 1, 2005
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Representation #10 - Mortgage Provisions
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
000 X 00xx Xxxxxx The Mortgage Loan documents provide that Borrower
shall obtain terrorism insurance subject to a
premium cap of two times the premium paid for the
terrorism coverage at closing (the "Terrorism
Cap"). In the event the premium for the terrorism
coverage exceeds the Terrorism Cap, Borrower shall
provide as much terrorism coverage as possible for
a premium equal to the Terrorism Cap.
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Samsondale Plaza The Mortgage Loan documents provide that Borrower
shall obtain terrorism insurance subject to a
premium cap of two times the premium paid for the
terrorism coverage at closing (the "Terrorism
Cap"). In the event the premium for the terrorism
coverage exceeds the Terrorism Cap, Borrower shall
provide as much terrorism coverage as possible for
a premium equal to the Terrorism Cap.
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Walgreen's Farmington The tenant of the Property provides some of the
insurance coverage and the tenant is permitted to
self-insure as long as certain conditions are
satisfied.
----------------------------------------------------------------------------------------------------------------------
Centennial Ridge Apartments The Borrower is only obligated to maintain Terrorism
Insurance up to a cap which is equal to 300% of the
premiums for Terrorism Insurance as of the
origination date of the Loan.
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Representation #12 - Environmental Conditions
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxxx The Mortgage Loan documents provide that Borrower,
at is sole cost and expense, shall cause annual
groundwater monitoring to be continued with
respect to the impact on the Mortgaged Property
from contamination from an adjacent property until
a "no further action" letter is issued by the
Connecticut Department of Environmental
Protection. Escrow held until "no further action
letter issued.
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Xxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxxxxx Village; Queen Plaza; Stateline/Freshwater
Stateline/Freshwater Plaza Plaza. The indemnity does not cover any costs or
expenses arising solely from the gross negligence or
willful misconduct of the related mortgagee. The
indemnity does not cover claims to the extent
arising after the date of transfer of title to the
related Mortgaged Property to any indemnified party
by foreclosure, deed-in-lieu, power of sale or
otherwise; provided that the indemnitors can prove
that such claim did not arise from any hazardous
materials
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----------------------------------------------------------------------------------------------------------------------
which existed on, in, under or affecting such
related Mortgaged Property prior to the transfer
date.
----------------------------------------------------------------------------------------------------------------------
Representation #14 - Insurance
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Walgreens North Aurora The Mortgage Loan documents provide that Walgreens
& Co. may self-insure with respect to the Related
Mortgage Property provided certain conditions set
forth in the Mortgage are met. Walgreens is in
fact self-insuring with respect to this property
therefore, a separate policy of terrorism
insurance was not required.
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Washington Mutual The Mortgage Loan documents provide that Washington
Mutual may self-insure with respect to the Related
Mortgage Property provided certain conditions set
forth in the Mortgage are met.
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000 X. 00xx Xxxxxx The related Mortgaged Property is 2 condominium
units (the "Units"). The related Mortgage Loan
documents provide that the lender will accept the
insurance that the Condominium Association carries
on the Units so long as the Condominium is
maintaining the insurance in accordance with the
Condominium Documents and the related Mortgage
Loan documents. The related Borrower is obligated
to obtain and maintain separate insurance (on an
excess and contingent basis) to the extent that
the insurance carried by the Condominium Insurance
fails to comply with insurance requirements in the
related Mortgage Loan documents.
----------------------------------------------------------------------------------------------------------------------
City Hall South The related Mortgaged Property is condominium
units (the "Units") in two separate condominium
projects. The related Mortgage Loan documents
provide that the lender will accept the insurance
that the relative Condominium Association carries
on the Units so long as the relative Condominium
Association is maintaining the insurance in
accordance with the Condominium Documents and
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
the related Mortgage Loan documents. The related
Borrower is obligated to obtain and maintain
separate insurance (on an excess and contingent
basis) to the extent that the insurance carried by
the Condominium Insurance fails to comply with
insurance requirements in the related Mortgage
Loan documents.
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Xxxxxxx Inn Part of the related Mortgaged Property is several
condominium units in a parking deck condominium (the
"Units"). The related Mortgage Loan documents
provide that the lender will accept the insurance
that the Condominium Association carries with
respect to the Units so long as the Condominium
Association is maintaining the insurance in
accordance with the Condominium Documents and the
related Mortgage Loan documents. The related
Borrower is obligated to obtain and maintain
separate insurance (on an excess and contingent
basis) to the extent that the insurance carried by
the Condominium Insurance fails to comply with
insurance requirements in the related Mortgage Loan
documents.
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Millennium Centre Retail The Mortgaged Property is a subject to an Operation
and Reciprocal Easement Agreement (the "XXXX"). The
related Mortgage Loan documents provide that to the
extent the Facilities Manager in accordance with the
XXXX and with the Facilities Management Agreement is
maintaining insurance of the type described in the
Related Mortgage Loan documents, on a primary and
non-concurrent basis and such insurance complies
with the requirements of the Related Mortgage Loan
documents and is otherwise acceptable to Lender, in
its sole discretion, Borrower shall be deemed to be
in compliance with The Related Mortgage Loan
documents so long as the Facilities Manager
maintains such insurance in accordance with the XXXX
and the Related Mortgage Loan
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
documents and Lender receives evidence satisfactory
to Lender of the terms and conditions of such
coverage. In the event the insurance which is
maintained by the Facilities Manager does not comply
with the Related Mortgage Loan documents, Borrower
is obligated to cause the Facilities Manager to make
the necessary changes in order to bring all
insurance policies into compliance with the Related
Mortgage Loan documents. In the event any such
policy(ies) cannot be brought into compliance with
the Related Mortgage Loan documents, Borrower must
obtain an additional policy(ies) on an excess and
contingent basis (the "Excess Insurance") which will
insure any gaps in coverage between the coverage
obtained under the insurance policies obtained by
the Facilities Manger and the insurance required
under the Related Mortgage Loan documents which such
Excess Insurance shall be acceptable to Lender in
its sole and absolute discretion. Lender must
receive evidence satisfactory to Lender of the terms
and conditions of such coverage. Lender must further
receive confirmation in writing from the insurance
carrier issuing the Excess Insurance that such
Excess Insurance is on an excess and contingent
basis.
----------------------------------------------------------------------------------------------------------------------
Walgreen's/Farmington The tenant of the Property provides some of the
insurance coverage and the tenant is permitted to
self-insure as long as certain conditions are
satisfied.
----------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxx As to 0000 Xxxxx Xxxxxx, the Borrower is excused
from obtaining terrorism insurance coverage to the
extent that such insurance is not commercially
available (and if the level of coverage required
by this Mortgage is not commercially available,
Borrower shall obtain the highest level of
coverage that is commercially available).
Further, they have no obligation to obtain
terrorism coverage if the cost solely attributable
to
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
such coverage exceeds $10,000 per year. As to
Sports Authority and Whole Foods, Borrower is only
obligated to purchase as much terrorism insurance
as is available at a rate not to exceed two times
the cost as of the closing date of a separate
insurance policy addressing such coverage.
----------------------------------------------------------------------------------------------------------------------
CVS Middletown, CVS Rhinebeck, CVS As to each of the four CVS deals, terrorism
Ballston, CVS Fishkill insurance is not required but "Lender reserves the
right to require such insurance if such insurance is
typically required by similar lenders on similar
property and can be obtained at a commercially
reasonable cost."
----------------------------------------------------------------------------------------------------------------------
American Financial Realty For each of the Mortgaged Properties, the tenant,
Citicorp North America, Inc., maintains through
Citigroup Inc. (ultimate parent company) a
comprehensive self-insured program for property
and liability coverage. With respect to business
interruption insurance coverage, pursuant to the
terms of the Citibank lease encumbering each of
the Mortgaged Properties, rent does not xxxxx as a
result of fire or any other hazard, risk or
casualty whatsoever and the tenant must continue
to pay the full rent payable under the lease.
----------------------------------------------------------------------------------------------------------------------
Centennial Ridge Apartments The Borrower is permitted to have a syndicate of
insurers of which the primary or 75% (if 4 or
less) or 60% (if 5 or more) must have a "AA-" by
S&P or "Aa3" by Xxxxx'x, provided that any
coverage maintained by a syndicate of insurers
have not less than "BBB" by S&P and "Baa2" by
Xxxxx'x.
Please note: The standard form mortgage does not
specifically contain a representation that flood
insurance must meet the requirements of the Federal
Insurance Administration.
----------------------------------------------------------------------------------------------------------------------
Lodgian Hotel Portfolio #3 If any insurance coverage is maintained by a
syndicate of insurers, the ratings requirements
will be satisfied if 75% of the syndicate (if four
or fewer members) or 60% (if five or more members)
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
maintain at least a AA- rating and all carriers
maintain a rating of at least BBB.
----------------------------------------------------------------------------------------------------------------------
Representation #17 - Local Law Compliance
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Forest Park Plaza In the case of each legal non-conforming use or
structure, if the Mortgaged Property is rebuilt
within 2 years from the date of damage, then such
use may be continued; however, if such use is
discontinued for over 2 years and/or the Mortgaged
is not rebuilt or restored within 2 years, then
upon rebuilding or restoration must conform to
current zoning.
----------------------------------------------------------------------------------------------------------------------
Palo Center Long Beach The property is short one parking space for it to be
legal nonconforming use or structure. The borrower
has agreed to create one additional parking space
post-closing.
----------------------------------------------------------------------------------------------------------------------
Carriage Crossing Shopping Center The dental office on the property is required to
have a conditional use permit ("CUP") but does
not. The zoning consultant retained by lender
received a letter from the town stating that it
was not going to enforce this requirement;
borrower has covenanted to obtain a CUP for this
use if the city should later elect to enforce this
requirement.
----------------------------------------------------------------------------------------------------------------------
Sports Authority Plaza As to Sports Authority, the parking on the
premises is deficient by 9 parking spaces,
according to the report of the zoning consultant.
The Seller was unable to obtain a certification
from the surveyor that there was sufficient space
on the Property to add 9 parking spaces. Law and
ordinance insurance coverage and a zoning
endorsement to the title policy were obtained.
----------------------------------------------------------------------------------------------------------------------
Regal Ridge Apartments As to Regal Ridge, there is a legally
non-conforming setback but law and ordinance
coverage was waived. However, the zoning
ordinance permits a rebuild on the same footprint
regardless of the extent of the casualty so long
as work is
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
commenced within one year.
----------------------------------------------------------------------------------------------------------------------
Easton Village The Mortgaged Property is in violation of state
law with respect to the slope of a portion of the
sidewalk and walkways located thereon, as
evidenced by a October 4, 2004 letter from the
Commonwealth of Massachusetts Department of Public
Safety to the entity which owned the Mortgaged
Property immediately prior to the Mortgagor.
----------------------------------------------------------------------------------------------------------------------
Xxxxxxxxxxxxxx #00 - Xxxxxxxxx Xxxxxx Only
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
PDSI Retail Portfolio - A small portion of the related Mortgaged Property
Independence Corners (Independence Corners only) consists of a small
strip of unimproved land. On account that the parcel
is unimproved, the terms of the related Ground Lease
do not address the disposition of any insurance
proceeds as it is not applicable.
----------------------------------------------------------------------------------------------------------------------
CVS Fishkill CVS Fishkill is secured by the borrower's
leasehold estate under a ground lease. As to CVS
Fishkill, the requirement from Representation
18(vii) that the Ground Lease have an original
term (a) of not less than 20 year beyond the
"Stated Maturity Date", or (b) of not less than 5
years beyond the Stated Maturity Date so long as
there are extension options exercisable by lender
that extend not less than 20 years beyond the
Stated Maturity Date is technically not met. This
is a hyper-amortization loan, so the maturity date
is the full amortization period of 30 years. The
original term of the ground lease (according to
the landlord's estoppel) expires in February 2020,
although the lease has 16 options to extend which
could extend the term another 78 years.
Therefore, the ground lease expires before the
maturity date of the loan. However, if the
Anticipated Repayment Date were deemed the
maturity date for purposes of this representation,
it would be satisfied.
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Also as to CVS Fishkill, Representation 18(ix) is
not met because, under the terms of the ground
lease, casualty insurance proceeds must be either
applied to rebuilding (and are held by tenant as
trust funds for such purpose) or, if tenant elects
not to rebuild and to terminate the lease, paid to
the ground lessor as a compensation payment. This
conflicts with the terms of the leasehold mortgage.
----------------------------------------------------------------------------------------------------------------------
Representation #22 - Legal Proceedings
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
000 X. 00xx Xxxxxx Career Education Corporation ("CECO"), the parent of
the material tenant of at the 000 X00xx Xxxxxx
Property, the Xxxxxxxxx Xxxxx Corporation, is the
subject of on-going investigations by the U.S.
Securities and Exchange Commission and the U.S.
Department of Justice relating to claims of
falsified student records, reported earnings and
related issues. CECO is also the subject of
shareholder actions regarding claims of falsified
student records and improper financial accounting. A
$3,000,000 letter of credit has been posted with
Lender, the proceeds of which are to be used for
tenant improvements and leasing commissions for
replacement tenants in the event that the lease
between Borrower and the Xxxxxxxxx Xxxxx Corporation
is terminated. The letter of credit will be returned
to Borrower upon resolution of the government
investigations, the shareholder actions and certain
other conditions.
----------------------------------------------------------------------------------------------------------------------
Stateline/Freshwater Plaza The Mortgage Loan documents disclose a Summary
Process Complaint filed on August 27, 2004 in
Superior Court,
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Judicial District of Hartford against Randy's
Wooster Street Pizza Shop, a tenant at the Mortgaged
Property, due to failure to pay minimum rent and
additional rent.
----------------------------------------------------------------------------------------------------------------------
Representation #23 - Other Mortgage Liens
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
All Loans (except While not specifically referring to rating agency
Xxxxxxxxx/Xxxxxxxxxx Xxxxx, 000 fees, the related Mortgage Loan documents require
Industrial Avenue, Centennial that the Mortgagor pay the lender's costs in
Ridge, Emerald Point Apartments, connection with the related Mortgagor seeking the
Lodgian Hotel Portfolio #3 and lender's consent to an encumbrance.
Xxxxxxx Plaza (Xxxxxxx Plaza
specifically refers to rating
agency fees))
----------------------------------------------------------------------------------------------------------------------
Xxxxxxxxx/Xxxxxxxxxx Xxxxx, 000 Xxx Xxxxxxxxx is not specifically required to pay
Industrial Avenue, Centennial any applicable expenses, including any applicable
Ridge, Emerald Point Apartments and Rating Agency fees in connection with the related
Lodgian Hotel Portfolio #3 Mortgagor seeking the lender's consent to an
encumbrance.
In the case of 000 Xxxxxxxxxx Xxxxxx and Emerald
Point, encumbrances are prohibited.
----------------------------------------------------------------------------------------------------------------------
Representation #26 - Licenses and Permits
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Carriage Crossing The dental office on the property is required to
have a conditional use permit ("CUP") but does not.
The zoning consultant retained by lender received a
letter from the town stating that it was not going
to enforce this requirement; borrower has covenanted
to obtain a CUP for this use if the city should
later elect to enforce this requirement.
----------------------------------------------------------------------------------------------------------------------
Residence Inn As to Residence Inn, a food service permit was
held by a party other than the tenant
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
under the ground lease, and a post-closing
undertaking was signed requiring that such permit be
reissued in the tenant's name. The borrower is
currently making arrangements to comply.
----------------------------------------------------------------------------------------------------------------------
Easton Village, Queen Plaza, To the Seller's knowledge, as of the date of
Stateline/Freshwater Plaza origination of each related Mortgage Loan, the
related Mortgagor was not in possession of all
certificates of occupancy for the related Mortgaged
Property. Notwithstanding the foregoing, the zoning
report for each related Mortgaged Property concluded
that the related Mortgaged Property was legal
conforming.
----------------------------------------------------------------------------------------------------------------------
Representation #28 - Releases of Mortgaged Properties
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Fountain Plaza The related Mortgage Loan documents provide
for the release of an unimproved portion of the
related Mortgaged Property without payment of a
release price provided that the conditions set forth
in the related Mortgage have been met.
----------------------------------------------------------------------------------------------------------------------
0000 X. Xxxx Xxxxx The related Mortgage Loan documents provide for
the release of an unimproved portion of the
related Mortgaged Property without payment of a
release price provided that the conditions set
forth in the related Mortgage have been met.
----------------------------------------------------------------------------------------------------------------------
City Hall and Xxxxxxx Inn The related Mortgage Loans are
cross-collateralized and the Related Notes are
notes with a hyper-amortization feature. The
cross collateralization feature will terminate
with respect to the City Hall Property on the
Optional Prepayment Date (as defined in the
related Notes) and the City Hall Property shall no
longer secure the Cross Obligations (as defined in
the related Cross Collateralization Agreement)
with respect to the Xxxxxxx Inn Loan.
Notwithstanding the immediately preceding
sentence, all of the remaining terms, covenants
and conditions
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
of the Cross Collateralization Agreement will remain
in full force and effect after the Optional
Prepayment Date, including, without limitation, the
provisions contained herein which set forth that the
Xxxxxxx Inn Property shall continue to secure the
Cross Obligations with respect to the City Hall
Loan.
----------------------------------------------------------------------------------------------------------------------
Representation #30 - Defeasance and Assumption of Costs
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
All Loans (except for 000 X. 00xx Xxxxx not specifically referring to rating agency and
American Financial Realty) fees, the related Mortgage Loan documents require
that the Mortgagor pay the lender's costs in
connection with a defeasance.
----------------------------------------------------------------------------------------------------------------------
Representation #33 - No Material Default
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Residence Inn The borrower executed an undertaking agreement at
closing requiring the delivery of a food service
permit (within 30 days of the loan closing date),
and has not yet complied with this requirement.
The borrower is currently making arrangements to
comply.
----------------------------------------------------------------------------------------------------------------------
Representation #34 - Due-on-Sale
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Fountain Plaza (a) The related Mortgage Loan documents provide
that the lender will not withhold its consent to a
transfer of the related Mortgaged Property in its
entirety so long as certain conditions in the
related Mortgage Loan documents (including,
without limitation, execution of an assumption
agreement by the transferee, transferee is an SPE
and no event of default exists).
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
(b) The related Mortgage Loan documents provide
that during the term of the loan, provided that
there is no event of default under the related
Mortgage Loan documents, the owners of direct and
indirect membership interests in the related
Mortgagor shall be permitted to obtain mezzanine
financing ("Mezzanine Financing") in connection with
the related Mortgaged Property by pledging their
membership interests in the related Mortgagor to an
acceptable lender (the "Mezz Lender"), provided,
however, that certain pre-conditions as set forth in
the related Mortgage Loan documents are met
(including, without limitation, the approval by the
lender of the terms of the Mezzanine Financing and
the execution and delivery or subordination and
standstill agreement together with the related
Mortgaged Property meeting certain loan to value and
debt service coverage ratio tests).
----------------------------------------------------------------------------------------------------------------------
Samsondale Plaza The related Mortgage Loan documents allow for
transfers between Xxxxx Xxxxxx and Xxxx X. Xxxxxx
of their interest in Borrower to each other
without Lender's consent provided, however, that
(A) no Event of Default or event which with the
giving of notice or the passage of time or both
would constitute an Event of Default shall have
occurred and remain uncured; (B) the transferee
can only be either one of Xxxx X. Xxxxxx and Xxxxx
Xxxxxx; and (C) the effect of the transfer shall
not result in the Borrower only consisting of one
member.
----------------------------------------------------------------------------------------------------------------------
Forest Park Plaza (a) The related Mortgage Loan documents provide that
the lender will not withhold its consent to a
transfer of the related Mortgaged Property in its
entirety so long as certain conditions in the
related Mortgage Loan documents (including, without
limitation, execution of an assumption agreement by
the transferee, transferee is an SPE and no event of
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
default exists).
(b) The related Mortgage Loan documents provide for
Permitted Transfers to up to 25 tenants in common
post-closing (but in any event prior to February 1,
2005) provided each tenant in common executes Lender
form of Loan Assumption and Modification Agreement
and each principal of each such tenant in common
executes Lender form of Indemnity and Guaranty
Agreement limited to acts of applicable tenant in
common borrower.
----------------------------------------------------------------------------------------------------------------------
0000 X. Xxxx Xxxxx The related Mortgage Loan documents provide that
the current tenant-in-common structure of the
related Mortgagor may be "rolled-up" and the
related Mortgaged Property may be transferred to
one of the current tenant-in-common borrowers
provided that there is no default under the
related Mortgage Loan documents and the conditions
set forth in the related Mortgage Loan documents
are met.
----------------------------------------------------------------------------------------------------------------------
Regal Ridge As to Regal Ridge, the Deed of Trust was amended
to allow a transfer by the borrower as of right to
a "Qualified Transferee" (which is defined as
pension funds, insurance companies, banking
corporations or other persons which meet a number
of financial requirements, one of which is that
they control real estate equity assets of at least
$1 Billion).
----------------------------------------------------------------------------------------------------------------------
Centennial Ridge Apartments All of the ownership interest in Borrower has been
pledged as security for a Mezzanine Loan that closed
simultaneously with the Loan.
----------------------------------------------------------------------------------------------------------------------
Representation #35 - Single Purpose Entity
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx Apartments Following the closing of the Mortgage Loan, the
borrower merged with a newly-formed entity, which
assumed the loan obligation. The new borrower also
assumed all the liabilities and obligations
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
of the previous borrower pursuant to the merger.
----------------------------------------------------------------------------------------------------------------------
Lodgian Hotel Portfolio #3 Certain Mortgagors owned additional properties prior
to the closing of the Mortgage Loan. Such additional
properties were included as collateral for other
loans originated by Xxxxxxx Xxxxx simultaneously
with the subject Mortgage Loan.
----------------------------------------------------------------------------------------------------------------------
Representation #43 - Recourse
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
All Loans (except for Easton The related Mortgage Loan documents provide for
Village, Queen Plaza, recourse for damages, liabilities, expenses or
Stateline/Freshwater Plaza) claims in connection with the Borrower's
intentional or gross negligent conduct with respect
to waste.
----------------------------------------------------------------------------------------------------------------------
Forest Park Plaza Each principal of any additional tenant in common
borrower permitted pursuant to the related
Mortgage Loan documents executes Lender's form of
Indemnity and Guaranty Agreement limited to the
acts of the tenant in common borrower of which
such indemnitor is a principal; however, original
indemnitor of sponsor borrower remains indemnitor
under Lender's form of Indemnity and Guaranty
Agreement for all standard carveouts contains in
standard form of Indemnity and Guaranty Agreement.
----------------------------------------------------------------------------------------------------------------------
Samsondale Plaza The related Mortgage Loan documents limit costs and
expenses to actual, reasonable out of pocket costs
and expenses and they specifically exclude any
consequential losses or damages.
----------------------------------------------------------------------------------------------------------------------
PDSI Portfolio The related Mortgage Loan documents provide that
Costs (as defined in the related Mortgage Loan
documents), shall not include and the related
Mortgagor and principal of the related Mortgagor
shall have no liability for any consequential,
special, incidental, punitive or similar-type of
damages in excess of $2,000,000.00 in the
aggregate.
----------------------------------------------------------------------------------------------------------------------
000 X. 00xx Xxxxxx & XxXxxxxx at The related Mortgage Loan documents provide that
Westbury the related Mortgage Loan is
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
full recourse to the related Borrower and principal
until the Recourse Release Conditions (as defined in
each of the related Mortgage Loan documents) have
been satisfied.
----------------------------------------------------------------------------------------------------------------------
XxXxxxxx at Westbury As of 1/31, the Recourse Release Conditions with
respect to XxXxxxxx at Westbury have been satisfied.
The draft of the release has been provided to the
related Mortgage Borrower and principal but has not
yet been returned.
----------------------------------------------------------------------------------------------------------------------
000 X. 00xx Xxxxxx As of 1/31, the Recourse Release Conditions with
respect to 000 X. 00xx Xxxxxx have not yet been
satisfied.
----------------------------------------------------------------------------------------------------------------------
0000 Xxxxx Xxxxxx As to 0000 Xxxxx Xxxxxx, the mortgagor and the
"warm body" indemnitor are only responsible for
misappropriating proceeds of insurance policies
and condemnation awards and rents, security
deposits and other refundable deposits to the
extent such misappropriation is intentional or
grossly negligent. The representation requires
carve-out liability for misappropriation of these
items without qualification.
----------------------------------------------------------------------------------------------------------------------
Centennial The recourse carve-out as to waste is qualified by
Ridge Apartments "intentional physical".
----------------------------------------------------------------------------------------------------------------------
Representation #47 - Operating Statements
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
All Loans The related Mortgage Loan documents require annual
operating statements and rent roll "and such other
information as may be requested"
----------------------------------------------------------------------------------------------------------------------
Centennial Ridge Apartments The Borrower is only required to provide rent rolls
on an annual basis, but the Borrower is required to
furnish any other information within 10 Business
Days of Lender's request for the same.
----------------------------------------------------------------------------------------------------------------------
Representation #53 - Origination of the Mortgage Loans
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Golden Mesa The Mortgage Loan was originated by Xxxxxxx Xxxxx
Mortgage Capital Inc.
----------------------------------------------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
[None.]
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR IMPAIRED PROPERTY
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATION 12)
[None.]
SCHEDULE II
MORTGAGE LOAN SCHEDULE
MLMT 2005-MKB2 MLML MORTGAGE LOAN SCHEDULE
Loan Level
Property Level
MORTGAGE PROPERTY
LOAN TYPE
LOAN # PROPERTY NAME SELLER
1 Lodgian Portfolio 3 MLML Hospitality
1.01 Holiday Inn - Baltimore Inner Harbor MLML Hospitality
1.02 Crowne Plaza - Houston MLML Hospitality
1.03 Holiday Inn - Xxxx Burnie MLML Hospitality
1.04 Courtyard by Marriott - Bentonville MLML Hospitality
1.05 Holiday Inn - Towson MLML Hospitality
1.06 Courtyard by Marriott - Abilene MLML Hospitality
1.07 Fairfield Inn - Merrimack MLML Hospitality
1.08 Courtyard by Marriott - Florence MLML Hospitality
1.09 Holiday Inn - Fairmont MLML Hospitality
2 Xxxxxxx Plaza MLML Office
3 AFR Citicorp Portfolio MLML Office
3.01 AFR Citicorp - Louisville MLML Office
3.02 AFR Citicorp - Greensboro MLML Office
3.03 AFR Citicorp - Boise MLML Office
5 Emerald Point Apartments MLML Multifamily
7 400 Industrial Avenue MLML Industrial
8 The Centennial Ridge Apartments MLML Multifamily
10 000 Xxxx 00xx Xxxxxx XXXX Xxxxxx
11 PDSI Retail Portfolio MLML Retail
11.01 Xxxxxxxx Shopping Center MLML Retail
11.02 Lower Makefield Shopping Center MLML Retail
11.03 Xxxxxx Corners MLML Retail
11.04 Regency Square MLML Retail
11.05 Independence Corners MLML Retail
00 Xxxxxxxx Xxxx Xxxxx Xxxxxxx XXXX Hospitality
15 Stateline/Freshwater Plaza MLML Retail
17 Sports Authority Plaza MLML Retail
19 Easton Village MLML Retail
21 Queen Plaza MLML Retail
00 Xxxx Xxxx Xxxxx XXXX Office
23 Samsondale Plaza MLML Mixed Use
24 Residence Inn MLML Hospitality
25 Northwest Goverment Office Portfolio MLML Office
25.01 Silverdale MLML Office
25.02 Fife MLML Office
25.03 Tacoma XXXX Xxxxxx
00 Xxxxxxxxxx Xxxxxx Retail MLML Retail
31 Two International Drive MLML Office
32 Whole Foods Shopping Center MLML Retail
34 Millennium Plaza MLML Mixed Use
35 Highland Village Apartment Homes MLML Multifamily
00 Xxxx Xxxxxxx Xxxxx XXXX Retail
39 Golden Mesa MLML Multifamily
41 000 Xxxx 00xx Xxxxxx MLML Retail
43 Hidden River Apartments MLML Multifamily
44 Folsom Pavilions MLML Retail
00 Xxxxx Xxxxx Xxxxxxxxxx XXXX Multifamily
50 2195 Club Center Dr. MLML Mixed Use
54 Forest Park Plaza MLML Retail
55 Tropicana Square MLML Retail
56 Fountain Plaza MLML Retail
61 El Rancho Center MLML Retail
62 Regal Ridge Apartments MLML Multifamily
63 Walgreen's San Francisco MLML Retail
64 Walgreen's Memphis MLML Retail
65 Washington Mutual MLML Xxxxxx
00 Xxxx Xxxxx Xxxxxx Xxxxxxxx XXXX Xxxxxx
67 Carriage Crossing Shopping Center MLML Retail
69 Walgreen's - North Aurora XXXX Xxxxxx
00 Xxxx Xxxxxx Xxxx Xxxxx XXXX Mixed Use
00 Xxxxx Xxxxx Xxxx Center MLML Retail
73 0000 Xxxxx Xxxxxx XXXX Retail
74 Walgreen's - Farmington MLML Retail
75 Walgreens Baton Rouge MLML Retail
76 Xxxxxxx Inn MLML Hospitality
79 XxXxxxxx at Westbury MLML Multifamily
81 CVS Middletown MLML Retail
82 CVS Rhinebeck MLML Retail
83 CVS Ballston MLML Retail
84 Cedar City Towne Center MLML Retail
85 CVS Fishkill MLML Retail
86 Tulare Retail MLML Retail
LOAN # ADDRESS
1 Various
1.01 000 Xxxx Xxxxxxx Xxxxxx
1.02 00000 Xxxxxxxxx Xxxxxxx
1.03 0000 Xxxxxxx Xxxxxxx
1.04 0000 XxXxxxx Xxxx
1.05 0000 Xxxxxxxx Xxxxxx Xxxx
1.06 0000 Xxxxxxxxx Xxxxx
1.07 0 Xxxxxxx Xxxx
1.08 00 Xxxxxxxx Xxxxxxxxx
1.09 000 Xxxx Xxxxxxx Xxxx
2 9200-9220 Xxxxxx Xxxxxxxxx
0 Various
3.01 0000 Xxxxx Xxxxxx Xxxxx Xxx
3.02 0000 Xxxxxxxxxx Xxxx
3.03 0000 Xxxxxx Xxxxxxx Xxxx
5 0000 Xxxxxxxxxxx Xxxx
7 000 Xxxxxxxxxxx Xxxx & 000 Xxxxxxxxxx Xxxxxx
0 000 Xxxxxxx Xxxxx Parkway
10 000-000 Xxxx 00xx Xxxxxx
11 Various
11.01 000 Xxxxxxxx Xxxxxxxxx
11.02 000 Xxxxx Xxxx Xxxx
11.03 12020-12236 S. US Highway 71
11.04 0000 Xxxxxxx Xxxxxxx
11.05 0000 Xxxxx Xxxxx 291
14 4000 RCA Boulevard
15 000 Xxx Xxxxxx
17 0000-0000 Xxxxx Xxxxxx Xxxxx and 1525-1655 Xxxx Xxxxxx Xxxx
00 00 Xxxxxxxxxx Xxxxxx
21 000 Xxxxx Xxxxxx
22 000 Xxxx Xxxxx Xxxxxx
23 45 Route 9W South
24 0000 Xxxxxx Xxxxxxxx Xxxxx
25 Various
25.01 0000 Xxxxxxxxx Xxxxxxx Xxx
25.02 0000 Xxxxxxx Xxxxxxx Xxxx
25.03 0000 Xxxx 00xx Xxxxxx
00 00 Xxxx Xxxxxxx Xxxxxx
00 0 Xxxxxxxxxxxxx Xxxxx
32 0000 Xxxxx Xxxxxxx Xxxxxx
34 0000-0000 Xxxxxx Xxxx
35 0000 Xxxxx Xxxxxxxx Xxxx Xxxx
37 0000 Xxxx Xxxxxxx Xxxxxxx
39 000 Xxxxx Xxxxxxxxxx Xxxxxxx
41 000 Xxxx 00xx Xxxxxx
43 0000 Xxxxxx Xxxxx Xxxxx
44 6602-6612 Folsom Xxxxxx Xxxx
00 000 Xxxxxxxxxx Xxxxx
50 000-000 Xxxx Xxxxxxxx Xxxxxxxxx, 000 Xxxx Xxxxxxxx Boulevard, 2195 Club Center Drive, 000 Xxxx Xxxxxxxx Xxxxxx
54 825 East Xxxxxxxx Xxxxxx
00 00-000 Xxxxxxx Street
56 0000 Xxxx Xxxx Xxxxxxxxx
61 000 Xxxxx Xxxxxxxx Xxxxxxxxx
62 5111 South Regal Xxxxxx
00 0000 Xxxxxxxx Xxxxxx
64 0000 Xxxxxx Xxxxxx
65 0000 Xxxxx Xxxxxxx Xxxxxx
66 0000 Xxxxx Xxxx Xxxxx
67 3642-3664 West 0000 Xxxxx Xxxxxx
69 0000 Xxxx Xxx Xxxxxx
70 2201-2221 Xxxx Xxxxx Xxxxxx
00 00000 Xxxxxxxx Xxxxxxxxx
00 0000-0000 Xxxxx Xxxxxx
74 000 Xxxx 00xx Xxxxxx
75 0000 Xxxxxxxxxx Xxxxxxxxx
76 000 Xxxxx Xxxx Xxxxxx
79 000 Xxxxx Xxxxxx Xxxxxx
81 000 Xxxx Xxxx Xxxxxx
82 00 Xxxx Xxxxxx Xxxxxx
83 0000 Xxxxxxxxx Xxxxxx
84 000 Xxxxx Xxxx Xxxxxx
85 000 Xxxx Xxxxxx
86 1110 & 0000 Xxxx Xxxxxx Xxxxxx
CUTOFF BALANCE
LOAN # CITY COUNTY STATE ZIP CODE (3/1/2005) ORIGINAL BALANCE
1 Various Various Various Various 67,760,000.00 67,760,000.00
1.01 Baltimore Xxxxxxxxx Xxxx XX 00000 26,064,204.60 26,064,204.60
1.02 Xxxxxxx Xxxxxx XX 00000 14,557,135.55 14,557,135.55
1.03 Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 5,198,976.98 5,198,976.98
1.04 Xxxxxxxxxxx Xxxxxx XX 00000 4,956,358.06 4,956,358.06
1.05 Towson Xxxxxxxxx XX 00000 4,991,017.90 4,991,017.90
1.06 Abilene Xxxxxx XX 00000 3,812,583.12 3,812,583.12
1.07 Merrimack Xxxxxxxxxxxx XX 00000 3,327,345.27 3,327,345.27
1.08 Xxxxxxxx Xxxxx XX 00000 2,634,148.34 2,634,148.34
1.09 Xxxxxxxx Xxxxxx XX 00000 2,218,230.18 2,218,230.18
0 Xxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000 67,260,000.00 67,260,000.00
3 Various Various Various Various 66,912,420.41 67,000,000.00
3.01 Xxxxxxxx Xxx XX 00000 21,971,242.52 22,000,000.00
3.02 XxXxxxxxxxxx Xxxxxxxx XX 00000 21,971,242.52 22,000,000.00
3.03 Xxxxxxxxxx Xxxxxxxxx XX 00000 22,969,935.37 23,000,000.00
0 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxx XX 00000 52,000,000.00 52,000,000.00
0 Xxxxxxxx Xxx Xxxxx XX 00000 48,500,000.00 48,500,000.00
8 Xxxxxxx Xxxxxx XX 00000 38,000,000.00 38,000,000.00
00 Xxx Xxxx Xxx Xxxx XX 00000 32,000,000.00 32,000,000.00
11 Various Various Various Various 23,902,073.83 24,000,000.00
11.01 Columbia Xxxxxxxxx XX 00000 9,112,665.65 9,150,000.00
11.02 Xxxxxxx Xxxxx XX 00000 7,220,418.14 7,250,000.00
11.03 Xxxxxxxxx Xxxxxxx XX 00000 5,228,578.65 5,250,000.00
11.04 Xxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 1,842,451.52 1,850,000.00
11.05 Independence Xxxxxxx XX 00000 497,959.87 500,000.00
00 Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx XX 00000 20,829,726.98 21,000,000.00
00 Xxxxxxx Xxxxxxxx XX 00000 18,600,000.00 18,600,000.00
17 Xxxxx Xxxxxxxx XX 00000 17,500,000.00 17,500,000.00
00 Xxxxxx Xxxxxxx XX 00000 16,650,000.00 16,650,000.00
00 Xxxxxxxxxxx Xxxxxxxx XX 00000 14,750,000.00 14,750,000.00
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 13,500,000.00 13,500,000.00
00 Xxxx Xxxxxxxxxx Xxxxxxxx XX 00000 13,231,301.95 13,250,000.00
00 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 12,927,282.84 13,000,000.00
25 Various Various WA Various 11,971,973.21 12,000,000.00
25.01 Xxxxxxxxxx Xxxxxx XX 00000 5,387,387.94 5,400,000.00
25.02 Xxxx Xxxxxx XX 00000 3,392,059.08 3,400,000.00
25.03 Xxxxxx Xxxxxx XX 00000 3,192,526.19 3,200,000.00
26 Xxxxxxx Xxxx XX 00000 11,173,811.65 11,200,000.00
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 10,107,389.44 10,150,000.00
00 Xxxx Xxxxxxx Xxxxxxx XX 00000 10,000,000.00 10,000,000.00
00 Xxxx Xxxxxxxxxx Xxxxxxx XX 00000 9,907,996.98 9,940,000.00
35 Flagstaff Xxxxxxxx XX 00000 9,500,000.00 9,500,000.00
00 Xxxxxxx Xxxxx XX 00000 8,640,000.00 8,640,000.00
00 Xxx Xxxxxx Xxxx Xxx XX 00000 8,247,458.89 8,320,000.00
00 Xxx Xxxx Xxx Xxxx XX 00000 7,980,480.04 8,000,000.00
00 Xxxxx Xxxxxxxxxxxx XX 00000 7,655,800.50 7,690,000.00
00 Xxxxxx Xxxxxxxxxx XX 00000 7,550,000.00 7,550,000.00
48 Xxxxxxxx Xxxx XX 00000 7,000,000.00 7,000,000.00
00 Xxx Xxxxxxxxxx Xxx Xxxxxxxxxx XX 00000 6,750,000.00 6,750,000.00
54 Brazil Xxxx XX 00000 5,905,977.26 5,920,000.00
00 Xxxxxxx Xxxxxxxx XX 00000 5,786,137.15 5,800,000.00
56 Xxxxxxxxxx Xxxxxxxx XX 00000 5,425,329.07 5,450,000.00
00 Xxxxxxx Xxxxx Xxxxxx XX 00000 4,538,988.58 4,550,000.00
00 Xxxxxxx Xxxxxxx XX 00000 4,294,285.99 4,300,000.00
00 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 4,290,022.66 4,300,000.00
00 Xxxxxxx Xxxxxx XX 00000 4,240,000.00 4,240,000.00
00 Xxxxxxxxx Xxxxxxx XX 00000 4,194,130.25 4,200,000.00
66 Xxxx Xxxxxxxx XX 00000 4,190,219.51 4,200,000.00
00 Xxxxx Xxxxxx Xxxx Xxxx XX 00000 4,186,285.34 4,200,000.00
00 Xxxxx Xxxxxx Xxxx XX 00000 3,825,000.00 3,825,000.00
00 Xxxx Xxxxx Xxx Xxxxxxx XX 00000 3,694,825.14 3,700,000.00
00 Xxxxxx Xxxxxxxxx Xxx Xxxxxxxxxx XX 00000 3,587,658.45 3,600,000.00
00 Xxx Xxxxxxxx Xxxxxxxxxxx XX 00000 3,481,772.39 3,500,000.00
00 Xxxxxxxxxx Xxx Xxxx XX 00000 3,382,112.21 3,390,000.00
00 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx XX 00000 3,195,519.64 3,200,000.00
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 3,140,633.13 3,150,000.00
00 Xxxxxxxxx Xxxxxxxxx XX 00000 2,588,696.10 2,600,000.00
81 Xxxxxxxxxx Xxxxxx XX 00000 2,000,000.00 2,000,000.00
00 Xxxxxxxxx Xxxxxxxx XX 00000 1,800,000.00 1,800,000.00
83 Ballston Spa Xxxxxxxx XX 00000 1,800,000.00 1,800,000.00
00 Xxxxx Xxxx Xxxx XX 00000 1,694,603.57 1,700,000.00
00 Xxxxxxxx Xxxxxxxx XX 00000 1,440,000.00 1,440,000.00
86 Xxxxxx Xxxxxx XX 00000 1,050,000.00 1,050,000.00
IO MONTHLY IO ANNUAL MONTHLY P&I ANNUAL P&I PRIMARY MASTER TRUSTEE &
DEBT DEBT DEBT DEBT INTEREST SERVICING SERVICING PAYING
LOAN # SERVICE SERVICE SERVICE SERVICE RATE (%) FEE RATE FEE RATE AGENT FEE
1 460,785.96 5,529,431.52 6.5770 0.01000 0.02000 0.00180
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
2 299,542.88 3,594,514.53 372,287.54 4,467,450.48 5.2710 0.01000 0.02000 0.00180
3 418,380.92 5,020,571.04 6.3480 0.01000 0.02000 0.00180
3.01
3.02
3.03
5 243,400.93 2,920,811.11 296,556.62 3,558,679.44 5.5400 0.01000 0.02000 0.00180
7 267,458.43 3,209,501.16 5.2380 0.01000 0.02000 0.00180
8 161,174.54 1,934,094.44 204,456.95 2,453,483.40 5.0200 0.01000 0.02000 0.00180
10 140,998.15 1,691,977.78 176,012.12 2,112,145.44 5.2150 0.01000 0.02000 0.00180
11 133,723.07 1,604,676.84 5.0600 0.01000 0.02000 0.00180
11.01
11.02
11.03
11.04
11.05
14 140,027.13 1,680,325.56 6.3650 0.01000 0.02000 0.00180
15 74,804.72 897,656.67 4.7600 0.01000 0.02000 0.00180
17 75,348.84 904,186.11 94,973.20 1,139,678.40 5.0960 0.01000 0.02000 0.00180
19 66,962.29 803,547.50 4.7600 0.01000 0.02000 0.00180
21 59,320.95 711,851.39 4.7600 0.01000 0.02000 0.00180
22 61,057.66 732,691.88 75,411.07 904,932.84 5.3530 0.01000 0.02000 0.00180
23 74,626.30 895,515.60 5.4270 0.01000 0.02000 0.00180
24 85,757.02 1,029,084.24 6.2500 0.01000 0.02000 0.00180
25 68,338.10 820,057.20 5.5270 0.01000 0.02000 0.00180
25.01
25.02
25.03
26 63,732.98 764,795.76 5.5200 0.01000 0.02000 0.00180
31 59,277.79 711,333.48 5.7570 0.01000 0.02000 0.00180
32 44,526.62 534,319.44 55,344.31 664,131.72 5.2700 0.01000 0.02000 0.00180
34 57,220.25 686,643.00 5.6250 0.01000 0.02000 0.00180
35 39,226.09 470,713.13 4.8870 0.01000 0.02000 0.00180
37 38,471.00 461,652.00 47,817.48 573,809.76 5.2700 0.01000 0.02000 0.00180
39 59,607.06 715,284.72 6.0000 0.01000 0.02000 0.00180
41 44,225.86 530,710.32 5.2600 0.01000 0.02000 0.00180
43 43,422.04 521,064.48 5.4500 0.01000 0.02000 0.00180
44 41,756.87 501,082.44 5.2640 0.01000 0.02000 0.00180
48 39,289.68 471,476.16 5.3960 0.01000 0.02000 0.00180
50 38,495.33 461,943.96 5.5400 0.01000 0.02000 0.00180
54 33,394.29 400,731.48 5.4410 0.01000 0.02000 0.00180
55 32,518.12 390,217.44 5.3860 0.01000 0.02000 0.00180
56 30,450.51 365,406.12 5.3550 0.01000 0.02000 0.00180
61 25,294.62 303,535.44 5.3100 0.01000 0.02000 0.00180
62 25,780.67 309,368.04 6.0000 0.01000 0.02000 0.00180
63 24,595.99 295,151.88 5.5670 0.01000 0.02000 0.00180
64 24,112.84 289,354.08 5.5145 0.01000 0.02000 0.00180
65 23,891.95 286,703.40 5.5170 0.01000 0.02000 0.00180
66 23,965.85 287,590.20 5.5450 0.01000 0.02000 0.00180
67 23,979.06 287,748.72 5.5500 0.01000 0.02000 0.00180
69 21,098.11 253,177.32 5.2400 0.01000 0.02000 0.00180
70 21,031.41 252,376.92 5.5100 0.01000 0.02000 0.00180
72 19,968.62 239,623.44 5.2900 0.01000 0.02000 0.00180
73 20,203.25 242,439.00 5.6500 0.01000 0.02000 0.00180
74 19,354.53 232,254.36 5.5500 0.01000 0.02000 0.00180
75 18,169.25 218,031.00 5.5000 0.01000 0.02000 0.00180
76 20,695.94 248,351.28 6.2070 0.01000 0.02000 0.00180
79 14,878.54 178,542.48 5.5710 0.01000 0.02000 0.00180
81 9,385.23 112,622.78 11,423.63 137,083.56 5.5540 0.01000 0.02000 0.00180
82 8,466.48 101,597.75 10,296.00 123,552.00 5.5670 0.01000 0.02000 0.00180
83 8,466.48 101,597.75 10,296.00 123,552.00 5.5670 0.01000 0.02000 0.00180
84 9,866.81 118,401.72 5.7000 0.01000 0.02000 0.00180
85 6,773.18 81,278.20 8,236.80 98,841.60 5.5670 0.01000 0.02000 0.00180
86 5,966.40 71,596.80 5.5070 0.01000 0.02000 0.00180
BROKER ADMIN. NET MORTGAGE ACCRUAL REMAINING MATURITY/ARD AMORT REMAINING
LOAN # STRIP RATE FEE INTEREST RATE TYPE TERM TERM DATE TERM AMORT TERM
1 6.60880 6.54520 Actual/360 52 52 7/1/2009 300 300
1.01 52
1.02 52
1.03 52
1.04 52
1.05 52
1.06 52
1.07 52
1.08 52
1.09 52
2 5.30280 5.23920 Actual/360 120 118 1/1/2015 360 360
3 6.37980 6.31620 Actual/360 178 177 12/1/2019 356 355
3.01 177
3.02 177
3.03 177
5 0.05000 5.57180 5.45820 Actual/360 120 118 1/1/2015 360 360
7 5.26980 5.20620 Actual/360 120 120 3/1/2015 360 360
8 5.05180 4.98820 Actual/360 84 84 3/1/2012 360 360
10 5.24680 5.18320 Actual/360 120 117 12/1/2014 360 360
11 5.09180 5.02820 Actual/360 60 57 12/1/2009 336 333
11.01 57
11.02 57
11.03 57
11.04 57
11.05 57
14 6.39680 6.33320 Actual/360 120 114 9/1/2014 300 294
15 4.79180 4.72820 Actual/360 60 57 12/1/2009 0 0
17 5.12780 5.06420 Actual/360 120 117 12/1/2014 360 360
19 4.79180 4.72820 Actual/360 60 57 12/1/2009 0 0
21 4.79180 4.72820 Actual/360 60 57 12/1/2009 0 0
22 5.38480 5.32120 Actual/360 120 118 12/31/2014 360 360
23 5.45880 5.39520 Actual/360 120 119 2/1/2015 360 359
24 6.28180 6.21820 Actual/360 120 116 11/1/2014 300 296
25 5.55880 5.49520 Actual/360 120 118 1/1/2015 360 358
25.01 118
25.02 118
25.03 118
26 5.55180 5.48820 Actual/360 120 118 1/1/2015 360 358
31 5.78880 5.72520 Actual/360 120 116 11/1/2014 360 356
32 5.30180 5.23820 Actual/360 120 117 12/1/2014 360 360
34 5.65680 5.59320 Actual/360 120 117 12/1/2014 360 357
35 4.91880 4.85520 Actual/360 120 118 1/1/2015 0 0
37 0.05000 5.30180 5.18820 Actual/360 120 118 1/1/2015 360 360
39 6.03180 5.96820 Actual/360 120 116 11/1/2014 240 236
41 5.29180 5.22820 Actual/360 120 118 1/1/2015 360 358
43 5.48180 5.41820 Actual/360 120 116 11/1/2014 360 356
44 5.29580 5.23220 Actual/360 120 120 3/1/2015 360 360
48 5.42780 5.36420 Actual/360 120 120 3/1/2015 360 360
50 5.57180 5.50820 Actual/360 120 120 3/1/2015 360 360
54 5.47280 5.40920 Actual/360 120 118 1/1/2015 360 358
55 5.41780 5.35420 Actual/360 120 118 1/1/2015 360 358
56 5.38680 5.32320 Actual/360 120 116 11/1/2014 360 356
61 5.34180 5.27820 Actual/360 120 118 1/1/2015 360 358
62 6.03180 5.96820 Actual/360 120 119 2/1/2015 360 359
63 5.59880 5.53520 Actual/360 120 118 1/1/2015 360 358
64 0.03180 5.48270 Actual/360 120 120 3/1/2015 360 360
65 5.54880 5.48520 Actual/360 120 119 2/1/2015 360 359
66 0.10000 5.57680 5.41320 Actual/360 120 118 1/1/2015 360 358
67 5.58180 5.51820 Actual/360 120 117 12/1/2014 360 357
69 5.27180 5.20820 Actual/360 120 120 3/1/2015 360 360
70 5.54180 5.47820 Actual/360 120 119 2/1/2015 360 359
72 5.32180 5.25820 Actual/360 120 117 12/1/2014 360 357
73 5.68180 5.61820 Actual/360 120 115 10/1/2014 360 355
74 5.58180 5.51820 Actual/360 120 118 1/1/2015 360 358
75 5.53180 5.46820 Actual/360 120 119 2/1/2015 360 359
76 6.23880 6.17520 Actual/360 120 118 12/31/2014 300 298
79 0.05000 5.60280 5.48920 Actual/360 84 80 11/1/2011 360 356
81 5.58580 5.52220 Actual/360 120 117 12/1/2014 360 360
82 5.59880 5.53520 Actual/360 120 117 12/1/2014 360 360
83 5.59880 5.53520 Actual/360 120 117 12/1/2014 360 360
84 5.73180 5.66820 Actual/360 120 117 12/1/2014 360 357
85 5.59880 5.53520 Actual/360 120 117 12/1/2014 360 360
86 5.53880 5.47520 Actual/360 120 120 3/1/2015 360 360
ENVIRONMENTAL ENVIRONMENTAL CROSS- CROSS-
LOAN # TITLE TYPE ARD (Y/N) ARD STEP UP (%) REPORT TYPE INSURANCE (Y/N) DEFAULTED COLLATERALIZED
1 Fee/Leasehold No Phase I No
1.01 Fee/Leasehold No Phase I No
1.02 Fee No Phase I No
1.03 Leasehold No Phase I No
1.04 Fee No Phase I No
1.05 Fee No Phase I No
1.06 Fee No Phase I No
1.07 Fee No Phase I No
1.08 Fee No Phase I No
1.09 Fee No Phase I No
2 Fee No Phase I No
3 Fee No Phase I No
3.01 Fee No Phase I No
3.02 Fee No Phase I No
3.03 Fee No Phase I No
5 Fee No Phase I No
7 Fee No Phase I No
8 Fee No Phase I No
10 Fee No Phase I No
11 Fee/Leasehold No Phase I No
11.01 Fee No Phase I No
11.02 Fee No Phase I No
11.03 Fee No Phase I No
11.04 Fee No Phase I No
11.05 Fee/Leasehold No Phase I No
14 Fee No Phase I No
15 Fee No Phase I No
17 Fee No Phase I No
19 Fee No Phase I No
21 Fee No Phase I No
22 Fee Yes Interest Rate plus 2% Phase I No Yes Yes
23 Fee No Phase I No
24 Fee No Phase I No
25 Fee No Phase I No
25.01 Fee No Phase I No
25.02 Fee No Phase I No
25.03 Fee No Phase I No
26 Fee No Phase I No
31 Leasehold No Phase I No
32 Fee No Phase I No
34 Fee No Phase I No
35 Fee No Phase I No
37 Fee No Phase I No
39 Fee No Phase I No
41 Fee Yes Interest Rate plus 2% Phase I No
43 Fee No Phase I No
44 Fee No Phase I No
48 Fee No Phase I No
50 Fee No Phase I No
54 Fee No Phase I No
55 Fee No Phase I No
56 Fee No Phase I No
61 Fee No Phase I No
62 Fee No Phase I No
63 Fee No Phase I No
64 Fee No Phase I No
65 Fee No Phase I No
66 Fee No Phase I No
67 Fee No Phase I No
69 Fee Yes Interest Rate plus 2% Phase I No
70 Fee No Phase I No
72 Fee No Phase I No
73 Fee No Phase I No
74 Fee No Phase I No
75 Fee No Phase I No
76 Fee Yes Interest Rate plus 2% Phase I No Yes Yes
79 Fee No Phase I No
81 Fee Yes Interest Rate plus 2% Phase I No
82 Fee Yes Interest Rate plus 2% Phase I No
83 Fee Yes Interest Rate plus 2% Phase I No
84 Fee No Phase I No
85 Leasehold Yes Interest Rate plus 2% Phase I No
86 Fee No Phase I No
DEFEASANCE LETTER OF LOCKBOX UPFRONT ENG. UPFRONT CAPEX UPFRONT ENVIR. UPFRONT TI/LC
LOAN # ALLOWED CREDIT IN-PLACE HOLDBACK AMT RESERVE RESERVES RESERVE RESERVE
1 Yes No Yes 225,674.00 2,917,765.00
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
2 Yes No Yes 160,572.00
3 Yes No Yes
3.01
3.02
3.03
5 Yes No Yes 268,125.00
7 Yes Yes Yes 41,113.00 300,000.00 100,000.00
8 Yes No Yes 1,004,962.50 13,833.33
10 Yes No Yes 398,363.00 508,720.00
11 Yes No Yes 1,307,813.00 208,947.00
11.01
11.02
11.03
11.04
11.05
14 Yes No Yes
15 Yes No Yes 37,400.00
17 Yes No No
19 Yes Yes Yes 1,100.00
21 Yes Yes Yes 29,700.00
22 Yes No Yes
23 Yes No Yes 32,312.50 220,000.00
24 Yes No Yes
25 Yes No Yes
25.01
25.02
25.03
26 Yes No No
31 Yes No No
32 Yes No No
34 Yes No No 200,000.00
35 Yes No No
37 Yes No Yes
39 No No No
41 Yes No Yes
43 Yes No No 300,000.00
44 Yes No Yes
48 Yes No No 36,125.00 17,400.00 400.00
50 Yes No No $ 650,000.00
54 Yes No No 70,306.00 312,496.00
55 Yes No No 53,915.00
56 Yes No No
61 Yes No No 75,000.00
62 Yes No No
63 Yes No Yes
64 Yes No Yes
65 Yes No Yes
66 Yes No Yes 200,000.00
67 Yes No No
69 Yes No Yes 117,160.00
70 Yes No No 53,438.00 112,500.00 50,000.00
72 Yes No No
73 Yes No No 81,006.00
74 Yes No Yes
75 Yes No Yes
76 Yes No Yes
79 Yes No No 37,662.50
81 Yes No Yes
82 Yes No Yes
83 Yes No Yes
84 Yes No No 75,000.00
85 Yes No Yes
86 Yes No No 16,040.00
UPFRONT UPFRONT
UPFRONT RE INSURANCE OTHER
LOAN # TAX RESERVE RESERVE RESERVE UPFRONT OTHER DESCRIPTION
1 484,697.32 585,752.00 38,506.72 Ground Rent Escrow
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
2 136,809.95 353,800.55 Debt Service
3 418,380.92 Debt Service
3.01
3.02
3.03
5 39,850.58
7 1,610,250.58 Debt Service ($1,604,750.58) and L/C Transfer Reserve ($5,500)
8 208,317.99 132,990.25
10 218,882.29 12,124.00
11 93,342.80 613,605.40 Dollar Tree Reserve ($75,000) and Debt Service Reserve (($538,605.40)
11.01
11.02
11.03
11.04
11.05
14 349,418.81 675,059.65 Seasonality Reserve
15 93,966.77 60,928.83
17 100,348.82
19 26,357.94 44,272.58
21 78,111.43 77,848.33
22 23,189.98 24,104.50 22,600.00 Common Charge Reserve
23 239,979.00 465,000.00 Quiznos Reserves (280,000); DMV/WAMU Occupancy Reserves (185,000)
24 - 38,201.63
25 41,034.66
25.01
25.02
25.03
26 62,456.56
31 18,119.92 4,350.80
32 8,296.36 7,287.88
34 19,756.70 14,084.70 20,045.46 Comerica Reserve
35 60,000.00 Seasonality Reserve
37
39 29,484.81
41 34,074.02 18,500.00 Blockbuster Construction Allowance Reserve
43 9,738.88 39,475.00
44 55,005.00 898.19 15,507.00 Executive Tan Reserve
48 31,015.50 29,798.37 235,738.07 Debt Service
50 19,500.00
54 17,035.35 15,892.80
55 19,699.50
56 15,735.98 1,409.80 35,544.00 Bake-A-Party Reserve (25,000) and Rent Abatement Reserve (10,544)
61 10,605.35
62 21,441.28 14,072.10
63
64 24,112.84 Debt Service
65
66 26,420.00 895.21 177,858.40 Maricopa County Reserves
67 1,299.73
69 20,000.00 8,350.00 21,098.11 Debt Service
70
72 19,584.11 995.93
73 37,595.20
74 19,354.53 Debt Service
75
76 15,305.80 7,663.80 7,543.04 Seasonality Reserve
79 3,539.00 4,070.71
81 9,103.11 12,058.39 Debt Service
82 10,704.90 10,943.53 Debt Service
83 5,819.99 10,208.95 Debt Service
84 1,920.96
85 7,635.17 8,633.98 Debt Service
86
MONTHLY MONTHLY MONTHLY MONTHLY
ENVIR. TI/LC MONTHLY RE INSURANCE OTHER
LOAN # MONTHLY CAPEX RESERVE RESERVE RESERVE TAX RESERVE RESERVE RESERVE
1 4% of Operating Revenues 268,863.67 62,279.81 38,144.65
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
2 4,695.00 24,305.00 23,941.74 10,343.25
3
3.01
3.02
3.03
5 17,979.00 39,850.58 27,495.50
7 8,221.00 12,500.00
8 13,833.33 44,723.23 13,385.08
10 3,675.37 43,776.45 6,062.00
11 13,068.00 30,697.00 65,469.04 11,861.59 14,584.00
11.01
11.02
11.03
11.04
11.05
14 40,114.83 31,765.35 13,112.58
15 1,923.75 20,015.81 4,686.83
17 1,859.00 56,000.00 36,977.29 2,478.00
19 1,264.10 3,483.33 8,785.98 3,405.58
21 2,149.86 2,500.00 13,018.57 5,988.33
22 1,417.00 259.00 11,594.99 2,410.45 22,600.00
23 3,008.72 2,800.00 42,653.91
24 14,243.00 17,425.14 5,457.38
25 2,122.00 8,333.33 12,849.11 2,928.54
25.01
25.02
25.03
26 229.00 2,917.00 12,491.31
31 1,474.00 8,750.00 6,039.97 417.20
32 569.00 18,289.00 1,451.86 1,457.58
34 541.00 19,756.70 2,347.45
35 9,914.83 4,478.51 10,000.00
37 1,598.00 3,333.00 13,855.71 1,567.21
39 3,225.00 3,685.60
41 529.00 1,908.14
43 5,800.00 9,738.88 11,714.56
44 11,001.00 898.19
48 2,900.00 5,427.71 4,966.40 39,289.68
50 1,350.00 5,083.00 4,447.97 2,625.00
54 1,502.00 5,678.45 1,444.80
55 532.00 1,800.00 3,939.90 7,415.89
56 618.00 2,083.33 5,797.47 704.90
61 322.56 1,250.00 2,651.34 1,032.50
62 2,020.83 5,772.65 1,759.01
63 164.00 2,416.00
64
65 671.40
66 751.00 4,317.00 6,605.00 895.21
67 363.00 2,600.00 3,164.79 649.86
69
70 292.00 3,771.72 1,584.19
72 530.00 2,077.10 497.96
73 500.00 11,498.94 988.75
74
75
76 6,903.00 7,652.90 2,554.60 7,543.04
79 1,057.50 3,539.04 581.53
81 78.00 2,415.17
82 78.00 2,236.68
83 1,580.10
84 260.00 3,047.74 960.48
85 127.00 1,603.90
86 181.00
TOTAL UNIT OF GRACE LOAN
LOAN # OTHER MONTH DESCRIPTION SF/UNITS MEASURE PERIOD GROUP
1 Ground Rent Escrow 1,421 Rooms 0 1
1.01 375 Rooms 1
1.02 291 Rooms 1
1.03 127 Rooms 1
1.04 90 Rooms 1
1.05 139 Rooms 1
1.06 99 Rooms 1
1.07 116 Rooms 1
1.08 78 Rooms 1
1.09 106 Rooms 1
2 281,140 SF 5 1
3 530,334 SF 0 1
3.01 176,778 SF 1
3.02 176,778 SF 1
3.03 176,778 SF 1
5 863 Units 2 2
7 986,565 SF 0 1
8 664 Units 3 2
10 157,516 SF 2 1
11 Xxxxxxxx Immediate Repairs 775,321 SF 5 1
11.01 187,674 SF 1
11.02 74,953 SF 1
11.03 386,210 SF 1
11.04 49,400 SF 1
11.05 77,084 SF 1
14 279 Rooms 5 1
15 427,873 SF 0 1
17 148,797 SF 5 1
19 101,125 SF 0 1
21 171,989 SF 0 1
22 Common Charge Reserve 85,002 SF 15 1
23 132,029 SF 5 1
24 120 Rooms 5 1
25 99,757 SF 5 1
25.01 41,901 SF 1
25.02 27,856 SF 1
25.03 30,000 SF 1
26 27,513 SF 5 1
31 88,467 SF 5 1
32 68,334 SF 5 1
34 43,308 SF 5 1
35 Seasonality Reserve 240 Units 5 2
37 127,802 SF 5 1
39 129 Units 5 1
41 12,100 SF 5 1
43 232 Units 5 2
44 46,314 SF 5 1
48 Debt Service 116 Units 5 2
50 81,690 SF 5 1
54 103,048 SF 5 1
55 25,524 SF 5 1
56 29,675 SF 5 1
61 25,537 SF 5 1
62 97 Units 5 2
63 12,277 SF 5 1
64 15,120 SF 5 1
65 107,419 SF 5 1
66 40,980 SF 5 1
67 29,018 SF 5 1
69 14,800 SF 5 1
70 23,342 SF 5 1
72 20,500 SF 5 1
73 15,675 SF 5 1
74 16,510 SF 5 1
75 14,560 SF 5 1
76 Seasonality Reserve 112 Rooms 15 1
79 45 Units 5 2
81 10,125 SF 5 1
82 11,400 SF 5 1
83 10,055 SF 5 1
84 20,860 SF 5 1
85 10,500 SF 5 1
86 12,084 SF 5 1
