MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of July 10, 2002 (the
"Agreement"), is entered into between Wachovia Bank, National Association (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cut-off Date, among the Purchaser as depositor, Wachovia Bank, National
Association, as master servicer (in such capacity, the "Master Servicer"), Lend
Lease Asset Management, L.P., 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. Capitalized terms used but
not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $451,866,776 (the "Wachovia 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 Wachovia
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 $1,082,600,757 (subject to a variance of plus or minus 5%). The
purchase and sale of the Mortgage Loans shall take place on July 11, 2002 or
such other date as shall be mutually acceptable to the parties to this Agreement
(the "Closing Date"). The consideration (the "Purchase Price") for the Mortgage
Loans shall be equal to (A) (i) 107.64% of the Wachovia Mortgage Loan Balance as
of the Cut-off Date, plus (ii) $927,714, which amount represents the amount of
interest accrued on the Wachovia 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, less (B) the principal amounts or percentage
interests of the Certificates set forth on Exhibit B attached hereto
(collectively, the "Retained Certificates").
The Purchase Price shall be paid to the Seller or its designee by wire
transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Price, 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 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 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, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1 or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case, unless the particular
document has not been returned from the applicable recording office, with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with any and all
intervening assignments thereof, in each case, unless the particular
document has not been returned from the applicable recording office, with
evidence of recording indicated thereon or certified by the applicable
recording office;
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(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
or a certified copy of that assignment as sent for recording and any missing
recording information), of (a) the Mortgage, (b) any related Assignment of
Leases (if such item is a document separate from the Mortgage) and (c) any
other 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 First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2002-MW1, 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, Commercial Mortgage
Pass-Through Certificates, Series 2002-MW1, or in blank;
(vi) originals or copies of any consolidation, assumption, substitution
and modification agreements in those instances where the terms or provisions
of the Mortgage or Mortgage Note have been consolidated or modified or the
Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a
marked version of the policy that has been executed by an authorized
representative of the title company or an agreement to provide the same
pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other evidence
of filing satisfactory to the Purchaser of any prior UCC Financing
Statements in favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the Seller had
possession of such UCC Financing Statements prior to the Closing Date) and,
if there is an effective UCC Financing Statement and continuation statement
in favor of the Seller on record with the applicable public office for UCC
Financing Statements, an original UCC Amendment, in form suitable for filing
in favor of LaSalle Bank National Association, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2002-MW1, 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
relating to a Mortgage Loan; and
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(xi) copies of any loan agreement, escrow agreement, security
agreement, lease enhancement policy or letter of credit relating to a
Mortgage Loan; and
(xii) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related intercreditor agreement;
provided that a copy of each mortgage note related to such Companion Loan,
rather than the original, shall be provided, and no assignments shall be
provided.
(d) The Seller shall take all actions reasonably necessary to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall promptly
be delivered or caused to be delivered by the Seller to the Master Servicer or
at the direction of the Master Servicer to the appropriate sub-servicer,
together with any related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller which secure any Mortgage Loan.
(g) 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 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 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 and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights in general, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from liabilities under applicable
securities laws;
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(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's articles of incorporation or bylaws, (B)
violate any law or regulation or any administrative decree or order to which
it is subject or (C) constitute a material default (or an event which, with
notice or lapse of time, or both, would constitute a material default)
under, or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound;
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or
operations of the Seller or its properties or have consequences that would
materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law
or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent of
any third person to the execution of this Agreement or the performance by
the Seller of its obligations under this Agreement (except to the extent
such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this Agreement
or the consummation of the transactions contemplated by this Agreement
except as have previously been obtained, and no bulk sale law applies to
such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or materially
and adversely affect the performance by the Seller of its obligations under
this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal to
the Purchase Price. The consideration received by the Seller upon the sale
of the Mortgage Loans to the Purchaser will constitute at least reasonably
equivalent value and fair consideration for the Mortgage Loans. The Seller
will be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the Mortgage Loans to the Purchaser. The Seller is
not selling the Mortgage Loans to the Purchaser with any intent to hinder,
delay or defraud any of the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I and Schedule II hereto for the benefit of the Purchaser
and the Trustee for the benefit
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of the Certificateholders as of the Closing Date, with respect to (and solely
with respect to) each Mortgage Loan.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement relating to a Mortgage Loan, then the Seller shall not later than 90
days from 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 interest 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 solely due to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan at the applicable Purchase
Price (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 not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the Master Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith; provided, however, that unless the
breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, the Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan); and provided, further, that
with respect to such additional 90-day period the Seller shall have delivered an
officer's certificate to the Trustee setting forth 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 Mortgage Note, Mortgage, title
insurance policy, Ground Lease or any letter of credit) 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 or any collateral
securing the Mortgage Loan or for any immediate servicing obligations. A
Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan"),
and is not cured as provided for above, shall require the repurchase or
substitution of all such cross-collateralized and cross-defaulted Mortgage Loans
unless the 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 debt service coverage ratio for all such related Crossed
Loans, including the affected Crossed Loan, for the four calendar quarters
immediately preceding such repurchase or substitution; provided, that if such
debt service coverage test is
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satisfied and any Crossed Loan 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 is held in the Trust Fund; provided, further, that the
repurchase of less than all such Crossed Loans and the release from
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 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. 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 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 clause 12 of Schedule I hereof in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
(d) 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 Certificate Account, and the delivery of the Mortgage File(s)
and the Servicing File(s) for the related Qualified Substitute Mortgage Loan(s)
to the Custodian and the Master Servicer, respectively, if applicable (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer 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, and (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 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.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any
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representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
(f) The Seller acknowledges and agrees that, for the purpose of
litigation that may arise out of the exercise of remedies hereunder in respect
of a Document Defect or Breach, the statute of limitations relating to the
exercise of such remedies will not begin to run until the earlier of discovery
of such Document Defect or Breach or the time such Document Defect or Breach
should have been discovered, provided the Seller receives written notice of such
Document Defect or Breach immediately upon discovery thereof.
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. The Purchaser has the
full corporate power and authority and legal right to acquire the Mortgage Loans
from the Seller and to transfer the Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, 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).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery or
performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's Articles of Incorporation or Bylaws, (B) any term or provision of
any material agreement, contract, instrument or indenture, to which the
Purchaser is a party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets.
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(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Purchaser, threatened against the Purchaser in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or governmental agency, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
(h) The Purchaser shall provide the Seller with all forms of Disclosure
Materials (including the final form of the Memorandum and the preliminary and
final forms of the Prospectus Supplement) promptly upon any such document
becoming available.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxx & XxXxxxxx 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;
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(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) A letter from the independent accounting firm of Price
WaterhouseCoopers LLP in form satisfactory to the Purchaser, relating to certain
information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (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 Agreement to Appointment of Master Servicer duly executed by the
Purchaser and the Seller;
(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 and the Underwriters may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that (i) such officer has
carefully examined the Specified Portions of the Prospectus Supplement and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (ii) such officer has examined the
Specified Portions of the Memorandum and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Memorandum, as of
the date thereof or as of the
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Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A thereto, the diskette which accompanies the Prospectus Supplement
(insofar as such diskette is consistent with such Annex A), Annex D thereto (to
the extent it relates to the Mortgaged Loans sold by the Seller hereunder) and
the following sections of the Prospectus Supplement (exclusive of any statements
in such sections that purport to summarize the servicing and administration
provisions of the Pooling and Servicing Agreement: "Summary of the Prospectus
Supplement--Relevant Parties--Mortgage Loan Sellers," "Summary of the Prospectus
Supplement--The Underlying Mortgage Loans And the Mortgaged Real Properties,"
"Risk Factors--The Risks Related to the Underlying Mortgage Loans," and
"Description of the Mortgage Pool--General," "--Cross-Collateralized Mortgage
Loans, Multi-Property Mortgage Loans and Mortgage Loans with Affiliated
Borrowers," "--Terms and Conditions of the Underlying Mortgage Loans,"
"--Mortgage Pool Characteristics, "--Significant Mortgage Loans" (to the extent
it relates to the Mortgaged Loans sold by the Seller hereunder) "--Additional
Loan and Property Information," "--Assessments of Property Condition," "--The
Mortgage Loan Sellers," "--Representations and Warranties" and "Changes in
Mortgage Pool Characteristics." The "Specified Portions" of the Memorandum shall
consist of the Specified Portions of the Prospectus Supplement and the first and
second full paragraphs on page "iii" of the Memorandum.
(e) The resolutions of the Seller's board of directors authorizing the
Seller's entering into the transactions contemplated by this Agreement, the
articles of incorporation and bylaws of the Seller, and a certificate of good
standing of the Seller issued by the State of Delaware not earlier than sixty
(60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement
11
or alleged untrue statement of a material fact contained in (A) the Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing or (B) any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates
(the items in (A) and (B) being defined as the "Disclosure Material"), or (ii)
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; but only if and to the extent that (I) any such untrue
statement or alleged untrue statement or omission or alleged omission arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact is with
respect to, or arises out of or is based upon an untrue statement or omission of
a material fact with respect to, the information regarding the Mortgage Loans,
the related Mortgagors, the related Mortgaged Properties and/or the Seller set
forth (Y) in the Prospectus Supplement and the Memorandum under the headings:
"Summary of the Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers,"
"Summary of the Prospectus Supplement--The Underlying Mortgage Loans And the
Mortgaged Real Properties," "Risk Factors--The Risks Related to the Underlying
Mortgage Loans," and "Description of the Mortgage Pool--General,"
"--Cross-Collateralized Mortgage Loans, Multi-Property Mortgage Loans and
Mortgage Loans with Affiliated Borrowers," "--Terms and Conditions of the
Underlying Mortgage Loans," "--Mortgage Pool Characteristics, "--Significant
Mortgage Loans" (to the extent it relates to the Mortgage Loans sold by the
Seller hereunder) "--Additional Loan and Property Information," "--Assessments
of Property Condition," "--The Mortgage Loan Sellers," "--Representations and
Warranties" and "--Changes in Mortgage Pool Characteristics" and the first and
second full paragraphs on page "iii" of the Memorandum and (Z) on Annex A to the
Prospectus Supplement and, to the extent consistent therewith, on the Diskette,
(III) any such untrue statement or alleged untrue statement or omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 3 or (IV)
any such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon any other information concerning the
characteristics of the Mortgage Loans, the related obligors on the Mortgage
Loans or the related Mortgaged Properties furnished to the Purchaser or the
Underwriters by the Seller; provided that the indemnification provided by this
Section 7 shall not apply to the extent that such untrue statement or omission
of a material fact was made as a result of an error in the manipulation of, or
in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties, including without limitation the aggregation of such
information with comparable information relating to the Other Mortgage Loans.
The information described in clauses (I) through (IV) above is collectively
referred to as the "Seller Information". The Seller shall
12
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(b) For purposes of this Agreement, "Registration Statement" shall mean
such registration statement No. 333-84456 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated June 18,
2002, as supplemented by the prospectus supplement dated June 26, 2002 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated June 26,
2002 relating to the Non-Registered Certificates, including all exhibits
thereto; "Registered Certificates" shall mean the Class A-1, Class A-2, Class
A-3, Class A-4, Class B, Class C and Class D Certificates; "Non-Registered
Certificates" shall mean the Certificates other than the Registered
Certificates; "Computational Materials" shall have the meaning assigned thereto
in the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
letters, the "No-Action Letters"); "Diskette" shall mean the diskette or compact
disc attached to each of the Prospectus and the Memorandum; and "Data File"
shall mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated July __, 2002 and rendered by
Price WaterhouseCoopers LLP (a "hard copy" of which Data File was initialed on
behalf of the Seller and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of either the 1933 Act or the 1934 Act, against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act, or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Material, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made, except to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is based upon the Seller Information, and the
Purchaser shall reimburse each such indemnified party, as incurred, or any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Purchaser may otherwise
have.
13
(d) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have otherwise than under this
Section 7. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (in addition to any local counsel approved by the
Purchaser and the Underwriters), approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(e) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
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(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The indemnity and contribution agreements contained in this Section
7 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by the Purchaser, the
Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(h) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Wachovia Mortgage Loan
Balance represents as of the Cut-off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of
15
counsel to the Underwriters; provided, however, Seller shall pay (or shall
reimburse the Purchaser to the extent that the Purchaser has paid) the expense
of recording any assignment of Mortgage or assignment of Assignment of Leases as
contemplated by Section 2 hereof with respect to such Seller's Mortgage Loans.
All other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other 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 Certificate Account, the Distribution
Account or, if established, the REO Account (each as defined in the Pooling and
Servicing Agreement) whether in the form of cash, instruments, securities or
other property; (iii) the assignment to the Trustee of the interest of the
Purchaser as contemplated by Section 1 hereof shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Trustee or any of its agents, including, without limitation, the Custodian,
of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
16
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. 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 12. 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 which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. 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 14. 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 15. Attorneys' Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party which obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party which commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 16. 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.
17
SECTION 17. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all respects
to the same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party, or third party beneficiary, against
whom such waiver or modification is sought to be enforced. No amendment to the
Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase and/or substitution
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge," such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
19
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Director
Address for Notices:
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
20
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as
of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such
Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges or
security interests of any nature encumbering such Mortgage Loan. Upon
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to
such Mortgage Loan free and clear of any pledge, lien or security
interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed in connection with such Mortgage Loan are
legal, valid and binding obligations of the related Mortgagor (subject
to any non-recourse provisions therein and any state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance
with their terms, except (i) that certain provisions contained in such
Mortgage Loan documents are or may be unenforceable in whole or in part
under applicable state or federal laws, but neither the application of
any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a
whole and such Mortgage Loan documents taken as a whole are enforceable
to the extent necessary and customary for the practical realization of
the rights and benefits afforded thereby and (ii) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other
Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each
case, with respect
I-1
to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and
binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and
Assignment of Leases is freely assignable.
8. Except as set forth in Exhibit C hereto, each related Mortgage is a
valid and enforceable first lien on the related Mortgaged Property
subject only to the exceptions set forth in paragraph (5) above and the
following title exceptions (each such title exception, a "Title
Exception", and collectively, the "Title Exceptions"): (a) the lien of
current real property taxes, ground rents, water charges, sewer rents
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in paragraph
(12) below or appearing of record, none of which, individually or in
the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) other matters to which
like properties are commonly subject, none of which, individually or in
the aggregate, materially and adversely interferes with the current use
of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Mortgagor's ability to pay its obligations
under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property, (e) the right of
tenants (whether under ground leases, space leases or operating leases)
at the Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases) and (f) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, except as described below, the lien of the
Mortgage for such other Mortgage Loan, none of which, individually or
in the aggregate, materially and adversely interferes with the current
use of the Mortgaged Property or the security intended to be provided
by such Mortgage or with the Mortgagor's ability to pay its obligations
under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property. Except with
respect to cross-collateralized and cross-defaulted Mortgage Loans and
the Mortgage Loans described below, there are no mortgage loans that
are senior or pari passu with respect to the related Mortgaged Property
or such Mortgage Loan.
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9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing
and recording), in all public places necessary at the time of the
origination of the Mortgage Loan to perfect a valid security interest
in all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a
purchase money security interest or a sale and leaseback financing
arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property),
to the extent perfection may be effected pursuant to applicable law by
recording or filing, and the Mortgages, security agreements, chattel
Mortgages or equivalent documents related to and delivered in
connection with the related Mortgage Loan establish and create a valid
and enforceable lien and priority security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivorship, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's
rights generally, or by general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law). Notwithstanding any of the foregoing, no representation is made
as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are
required in order to effect such perfection.
10. All real estate taxes, water charges, sewer rents and governmental
assessments, or installments thereof, which would be a lien on the
Mortgaged Property and that prior to the Cut-off Date have become
delinquent in respect of each related Mortgaged Property have been
paid, or an escrow of funds in an amount sufficient to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes, water charges, sewer rents and
governmental assessments and installments thereof shall not be
considered delinquent until the earlier of (a) the date on which
interest and/or penalties would first be payable thereon and (b) the
date on which enforcement action is entitled to be taken by the related
taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the
Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely
the value of such Mortgaged Property as security for the Mortgage Loan
and to the Seller's actual knowledge as of the Cut-off Date there was
no proceeding pending for the total or partial condemnation of such
Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of
principal (as set forth on the Mortgage Loan Schedule) is insured by an
ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable jurisdiction,
insuring the Seller, its successors and assigns, subject only to the
Title Exceptions; the Seller or its successors or assigns is the named
insured of such policy; such policy is assignable without consent of
the insurer and will inure to the benefit of the Trustee as mortgagee
of
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record; is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; all premiums thereon have
been paid; no claims have been made under such policy and the Seller
has not done anything, by act or omission, and the Seller has no actual
knowledge of any matter, which would impair or diminish the coverage of
such policy. The insurer issuing such policy is either (x) a
nationally-recognized title insurance company or (y) qualified to do
business in the jurisdiction in which the related Mortgaged Property is
located to the extent required; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not
available) (a) access to public road or (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to
the related Mortgaged Property in the jurisdiction in which such
Mortgaged Property is located, and with respect to a fire and extended
perils insurance policy, is in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the initial
principal balance of the Mortgage Loan, and in any event, the amount
necessary to prevent operation of any co-insurance provisions; and,
except if such Mortgaged Property is operated as a mobile home park, is
also covered by business interruption or rental loss insurance, in an
amount at least equal to 12 months of operations of the related
Mortgaged Property (or in the case of a Mortgaged Property without any
elevator, 6 months), all of which was in full force and effect with
respect to each related Mortgaged Property; and, as of the Closing
Date, to the actual knowledge of the Seller, all insurance coverage
required under each Mortgage, which insurance covers such risks and is
in such amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located, is in full
force and effect with respect to each related Mortgaged Property; all
premiums due and payable through the Closing Date have been paid; and
no notice of termination or cancellation with respect to any such
insurance policy has been received by the Seller; and except for
certain amounts not greater than amounts which would be considered
prudent by an institutional commercial mortgage lender with respect to
a similar Mortgage Loan and which are set forth in the related
Mortgage, any insurance proceeds in respect of a casualty loss, will be
applied either (i) to the repair or restoration of all or part of the
related Mortgaged Property or (ii) the reduction of the outstanding
principal balance of the Mortgage Loan, subject in either case to
requirements with respect to leases at the related Mortgaged Property
and to other exceptions customarily provided for by prudent
institutional lenders for similar loans. The Mortgaged Property is also
covered by comprehensive general liability insurance against claims for
personal and bodily injury, death or property damage occurring on, in
or about the related Mortgaged Property, in an amount customarily
required by prudent institutional lenders.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and
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additional insured in the case of a liability insurance policy and
provide that they are not terminable without 30 days prior written
notice to the Mortgagee (or, with respect to non-payment, 10 days prior
written notice to the Mortgagee) or such lesser period as prescribed by
applicable law. Each Mortgage requires that the Mortgagor maintain
insurance as described above or permits the Mortgagee to require
insurance as described above, and permits the Mortgagee to purchase
such insurance at the Mortgagor's expense if Mortgagor fails to do so.
14. (A) Other than payments due but not yet 30 days or more delinquent, to
the Seller's actual knowledge, based upon due diligence customarily
performed with the servicing of comparable mortgage loans by prudent
institutional lenders, there is no material default, breach, violation
or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and to the Seller's actual knowledge no event
(other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default, breach, violation or event
of acceleration, provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty made
by the Seller in any of clauses (10), (15) and (19) of this Schedule I
or in any clause of Schedule II or III, and (B) the Seller has not
waived any material default, breach, violation or event of acceleration
under such Mortgage or Mortgage Note, except for a written waiver
contained in the related Mortgage File being delivered to the
Purchaser, and pursuant to the terms of the related Mortgage or the
related Mortgage Note, and other documents in the related Mortgage File
no Person or party other than the holder of such Mortgage Note may
declare any event of default or accelerate the related indebtedness
under either of such Mortgage or Mortgage Note.
15. As of the Cut-off Date, the Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more
past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation
except as expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar
successor provision). Accordingly, such Mortgage Loan is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds
of such Mortgage Loan were used to acquire, improve or protect the
portion of such commercial or multifamily residential property that
consists of
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an interest in real property (within the meaning of Treasury
Regulations Sections 1.856-3(c) and 1.856-3(d)) and such interest in
real property was the only security for such Mortgage Loan as of the
Testing Date (as defined below), or (2) the fair market value of the
interest in real property which secures such Mortgage Loan was at least
equal to 80% of the principal amount of the Mortgage Loan (a) as of the
Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest
in real property shall first be reduced by (a) the amount of any lien
on such interest in real property that is senior to the Mortgage Loan,
and (b) a proportionate amount of any lien on such interest in real
property that is on a parity with the Mortgage Loan, and (2) the
"Testing Date" shall be the date on which the referenced Mortgage Loan
was originated unless (a) such Mortgage Loan was modified after the
date of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has
been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest
such "significant modification" occurred. The Mortgage Loan documents
with respect to each Defeasance Loan do not allow such Defeasance Loan
to be defeased prior to two years after the Startup Day.
19. One or more environmental site assessments (prepared in accordance with
the Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM))
or updates thereof were performed by an environmental consulting firm
independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, and the Seller, having made
no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) referenced herein, has no actual
knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged
Property that was not disclosed in such report(s). If any such
environmental report identified any Recognized Environmental Condition
(REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society
for Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all
material respects, then either (i) an escrow greater than 100% of the
amount identified as necessary by the environmental consulting firm to
address the REC is held by the Seller for purposes of effecting same
(and the borrower has covenanted in the Mortgage Loan documents to
perform such work), (ii) the related borrower or other responsible
party having financial resources reasonably estimated to be adequate to
address the REC is required to take such actions or is liable for the
failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or
regulation, (iii) the borrower has provided an environmental insurance
policy, (iv) an
I-6
operations and maintenance plan has been or will be implemented or (v)
such conditions or circumstances were investigated further and based
upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation. All
environmental assessments or updates that were in the possession of the
Seller and that relate to a Mortgaged Property insured by an
environmental insurance policy have been delivered to or disclosed to
the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render
the rights and remedies of the holder thereof adequate for the
practical realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-off Date, no Mortgagor is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or
insolvency proceeding.
22. Except as set forth in Exhibit C hereto, each Mortgage Loan is a whole
loan and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or
additional interest in the form of participation in the cash flow of
the related Mortgaged Property or, other than the ARD Loans, provide
for negative amortization. The Seller holds no preferred equity
interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged
Property, each related Mortgage or loan agreement contains provisions
for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without complying with the requirements of the
Mortgage or loan agreement, the related Mortgaged Property, or any
controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death of a
member, general partner or shareholder of the related Borrower and
transfers of less than a controlling interest in a mortgagor, or a
substitution or release of collateral within the parameters of
paragraph (26) below), or encumbered in connection with subordinate
financing by a lien or security interest against the related Mortgaged
Property, other than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to
the related origination date.
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26. Except as described below, since origination, no material portion of
the related Mortgaged Property has been released from the lien of the
related Mortgage in any manner which materially and adversely affects
the value of the Mortgage Loan or materially interferes with the
security intended to be provided by such Mortgage, and, except with
respect to Mortgage Loans (a) which permit defeasance by means of
substituting for the Mortgaged Property (or, in the case of a Mortgage
Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) U.S. Treasury obligations sufficient to pay the
Mortgage Loans in accordance with their terms, (b) where a release of
the portion of the Mortgaged Property was contemplated at origination
and such portion was not considered material for purposes of
underwriting the Mortgage Loan, (c) where release is conditional upon
the satisfaction of certain underwriting and legal requirements and the
payment of a release price that represents adequate consideration for
such Mortgaged Property, or (d) which permit the related Mortgagor to
substitute a replacement property in compliance with REMIC Provisions,
the terms of the related Mortgage do not provide for release of any
portion of the Mortgaged Property from the lien of the Mortgage except
in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from governmental
authorities, a legal opinion, an endorsement to the related title
policy, or based upon other due diligence considered reasonable by
prudent commercial conduit mortgage lenders in the lending area where
the applicable Mortgaged Property is located, as of the date of
origination of such Mortgage Loan and as of the Cut-off Date, there are
no material violations of any applicable zoning ordinances, building
codes and land laws applicable to the Mortgaged Property or the use and
occupancy thereof which (i) are not insured by an ALTA lender's title
insurance policy (or a binding commitment therefor), or its equivalent
as adopted in the applicable jurisdiction, or a law and ordinance
insurance policy or (ii) would have a material adverse effect on the
value, operation or net operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination
of each Mortgage Loan, none of the material improvements which were
included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building restriction
lines of such property (except Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material adverse
affect on the related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by the title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively
covered by title insurance).
29. Except as set forth on Exhibit C hereto, with respect to at least 95%
of the Mortgage Loans (by balance) having a Cut-off Date Balance in
excess of 1% of the Initial Pool Balance, the related Mortgagor has
covenanted in its organizational documents and/or the Mortgage Loan
documents to own no significant asset other than the related Mortgaged
Property or Mortgaged Properties, as applicable, and assets incidental
to its ownership
I-8
and operation of such Mortgaged Property, and to hold itself out as
being a legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's actual knowledge, no funds have been received from any
Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as
of the Cut-off Date, there was no pending action, suit or proceeding,
or governmental investigation of which it has received notice, against
the Mortgagor or the related Mortgaged Property an adverse outcome of
which could reasonably be expected to materially and adversely affect
such Mortgagor's performance under the related Mortgage Loan documents
or the security intended to be provided by the Mortgage Loan documents
or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge,
as of the Cut-off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for complied as of the
date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except as set forth in Exhibit C hereto and except as described below,
the related Mortgage Note is not secured by any collateral that secures
a Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect.
36. Except as described below, all escrow deposits and payments required
pursuant to the Mortgage Loan as of the Closing Date required to be
deposited with the Seller in accordance with the Mortgage Loan
documents have been so deposited, are in the possession, or under the
control, of the Seller or its agent and there are no deficiencies in
connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans
by prudent commercial and multifamily mortgage lending institutions
with respect to the related geographic area and properties comparable
to the related Mortgaged Property, as of the date of origination of the
Mortgage Loan, the related Mortgagor, the related lessee, franchisor or
operator was in possession of all material licenses, permits and
authorizations then required for use of the
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related Mortgaged Property, and, as of the Cut-off Date, the Seller has
no actual knowledge that the related Mortgagor, the related lessee,
franchisor or operator was not in possession of such licenses, permits
and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage
Loan have been in all respects legal and have met customary industry
standards for servicing of commercial mortgage loans for conduit loan
programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related
Mortgaged Property.
40. Except as described below, the Mortgage Loan documents for each
Mortgage Loan provide that each Mortgage Loan is non-recourse to the
related Mortgagor except that the related Mortgagor accepts
responsibility for fraud and/or other intentional material
misrepresentation. Furthermore, the Mortgage Loan documents for each
Mortgage Loan provide that the related Mortgagor shall be liable to the
lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the
related Mortgagor after the occurrence of an event of default and not
paid to the Mortgagee or applied to the Mortgaged Property in the
ordinary course of business, misapplication or conversion by the
Mortgagor of insurance proceeds or condemnation awards or breach of the
environmental covenants in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage
and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the real
property.
42. With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (1) no
earlier than two years after the Closing Date, (2) only with substitute
collateral constituting "government securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient
to make all scheduled payments under the Mortgage Note and (3) only to
facilitate the disposition of the Mortgaged Property and not as a part
of an arrangement to collateralize a REMIC offering with obligations
that are not real estate mortgages. In addition, if such Mortgage
contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its
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expenses associated with a defeasance to the Mortgagor (including
rating agencies' fees, accounting fees and attorneys' fees), and
provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which
the lender can require) (a) an accountant's certification as to the
adequacy of the defeasance collateral to make payments under the
related Mortgage Loan for the remainder of its term, (b) an Opinion of
Counsel that the defeasance complies with all applicable REMIC
Provisions, and (c) assurances from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates.
Notwithstanding the foregoing, some of the Mortgage Loan documents may
not affirmatively contain all such requirements, but such requirements
are effectively present in such documents due to the general obligation
to comply with the REMIC Provisions and/or deliver a REMIC Opinion of
Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the
Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. None of the Mortgaged Properties are encumbered, and none of the
Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of
money junior to or of equal priority with, or superior to, the lien of
the related Mortgage (other than Title Exceptions, taxes, assessments
and contested mechanics and materialmens liens that become payable
after the after the Cut-off Date of the related Mortgage Loan).
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SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of
the lessor thereunder is required, it has been obtained prior to the
Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent
is required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and that any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if an event
of default occurs under the Ground Lease and notice is provided to the
mortgagee and such default is curable by the mortgagee as provided in
the Ground Lease, but remains uncured beyond the applicable cure
period.
4. To the actual knowledge of the Seller, at the Closing Date, such Ground
Lease is in full force and effect and other than payments due but not
yet 30 days or more delinquent, (1) there is no material default, and
(2) there is no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further
provides that no notice given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the
ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however,
to only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity to cure any curable
default under such Ground Lease before the lessor thereunder may
terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date.
II-1
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment or defeasance of
the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any institutional
investor, taking into account the relative duration of the ground lease
and the related Mortgage and the ratio of the market value of the
related Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
2 Burbank Empire Center 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
4 Xxxxxx Xxxxx Xxxxx 0000 Xxxxx Xxxx Xx. Xxxxxxx XX 00000
8 Somerfield at Lakeside 0000 Xxxxxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000
9 Mayfair Shopping Center 00-000 Xxxx Xxxxxxx Xxxxxxxx Xxxxxxx XX 00000
10 Keystone Technology VII, VIII & IX 627,629 and 000 Xxxxx Xxxxx Xxxxxx XX 00000
00 Xxxxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxx XX 00000
00 Xxx Xxxxx xx Xxxx Xxxxx Xxxxxxx 0000 Xxxx xx Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxx I XXX xx Xxxxx & Xxxxxx Xxx Xxxxx XX 00000
17 Vista Ridge Apartments 0000 Xxx Xxxxxxxx Xxxxx Xxxx XX 00000
19 TRW - Redondo Beach, CA 0000 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxx XX 00000
20 Uptown Shopping Center Xxxx Xxxxxxxx & XX 00 Xxxxx Xxxxxxxx XX 00000
26 Falls Pointe Shopping Center 0000 Xxxxx xx xxx Xxxxx Xxxx Xxxxxxx XX 00000
28 Island Lakes Estates & Villas 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
00 Xxxxxxxx Xxxxxxx Medical Center 0000 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000
33 One Park Ten 00000 Xxxx Xxx Xxxxx Xxxxxxx XX 00000
35 Shoppes of Lake Ave 00000 Xxxxxx-Xxxxxxxx Xxxx Xxxxxxx XX 00000
36 Radisson/ Scanticon Hotel & Convention 0000 Xxxxx Xxx. Xxxx xx Xxxxxxx XX 00000
Center (2)
40 Diamond Lakes 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000
42 Coliseum Lofts Apartments 0000-0000 Xxxx Xxxxx Xx. Xxxxxxxx XX 00000
45 Newington Westfarms Retail Center 0000-0000 Xxxxxxxxx Xxxx Xxxxxxxxx, Xxxx XX 00000
Hartford
46 Commerce Corporate Center 0000 X. Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxxx Xxxxxxxxxx Xxxxxx 000 X. Xxxxx Xxxxxx/0000-0000 X. Xxxxxx XX 00000
Xxxxx Xx.
00 Xxxx'x Xxxxx Shopping Center 0000 X Xxx 00 Xxxxxxxx XX 00000
56 Xxxxxxxx Xxxxx Apartments 000 Xxxxx Xxxxxxx Xxx Xxxx Xxxxxxx XX 00000
00 Xxxxxxxxxx Xxxxxxxxxxxx Xxxx 167, 171 & 000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000
58 Steeplechase Apartments 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxx II SEC Craig & Tenaya Xxx Xxxxx XX 00000
00 Xxxx Xxxxxx Xxxxxxx 00 Xxxx Xxxx Xxxx Xxxxxxx XX 00000
66 La Mesa Commerce Center 0000 Xxxxxxx Xxxxx Xx Xxxx XX 00000
71 Caribbean Warehouse Center II 3500-3560 & 0000-0000 XX 000xx Xxxxx XX 00000
Avenue
72 Arlington II 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
73 000 Xxxxxxxxx Xxxxxxxx 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
00 Xxxxxxxx'x Xxxxxx Xxxx 000 X. Xxxxx Xxxxxx Xxxxxx Xxxx XX 00000
76 Central Crossings Shopping Center U.S. Xxxxx 000/XX Xxxxx Xxxxx 00 Xxxxxxx Xxxxxx XX 00000
84 Wertland & Xxxxxx Apartments 0000 Xxxxxxxx Xxxxxx & 0000 Xxxxxxxxxxxxxxx XX 00000
Preston Avenue
85 Lakewood Village Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
89 Railroad Y Apartments 0000 Xxxx Xxxx Xx. Xxxxxxxx XX 00000
000 Xxxx Xxxxxxx Xxxxxxx Xxxxxxxx Center 255, 265, 000 X. Xx Xxxxx Xxxx. Xxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxxxxx Xxxxxxxx Center 0000-0000 Xxxxxxx Xxxx. Xxxxxx XX 00000
ORIGINAL REMAINING MATURITY
CUT-OFF DATE INTEREST TERM TO TERM TO DATE OR
MORTGAGE PRINCIPAL MONTHLY P&I CALCULATION MATURITY MATURITY ARD BALLOON
LOAN BALANCE PAYMENTS MORTGAGE RATE (30/360 OR ACTUAL OR ARD OR ARD MATURITY DATE BALANCE
NUMBER ($) (3) ($) (%) 360) (MOS.) (MOS.) OR ARD ($)
-----------------------------------------------------------------------------------------------------------------------------------
2 64,951,470.09 453,154.91 7.4700% Actual 360 120 119 1-Jun-12 57,393,035.38
4 44,963,978.52 303,021.48 7.1200% Actual 360 120 119 1-Jun-12 39,377,398.28
8 23,400,000.00 150,529.69 6.6700% Actual 360 60 60 1-Jul-07 22,516,717.47
9 22,470,551.90 155,938.98 7.4100% Actual 360 120 118 1-May-12 19,839,804.35
10 22,450,000.00 157,435.10 7.5300% Actual 360 120 109 1-Aug-11 20,540,259.90
12 21,343,137.41 144,844.59 7.1900% Actual 360 120 119 1-Jun-12 18,725,335.66
13 20,800,000.00 135,600.44 6.8000% Actual 360 120 113 1-Dec-11 19,655,361.85
16 18,000,000.00 119,633.59 6.9900% Actual 360 120 120 1-Jul-12 15,698,800.87
17 16,725,000.00 112,510.14 7.1100% Actual 360 120 119 1-Jun-12 15,422,913.23
19 15,122,173.12 161,458.50 7.5650% Actual 360 116 114 10-Jan-12 4,312,948.85
20 14,750,000.00 95,570.19 6.7400% Actual 360 60 60 1-Jul-07 14,117,324.77
26 11,800,000.00 78,505.69 7.0000% Actual 360 120 120 1-Jul-12 10,294,174.06
28 10,960,000.00 74,321.01 7.1900% Actual 360 120 120 1-Jul-12 9,609,285.42
30 10,707,498.89 73,333.95 7.2500% Actual 360 94 89 1-Dec-09 9,803,227.63
33 9,517,345.21 64,011.04 7.1000% Actual 360 120 119 1-Jun-12 8,330,510.63
35 9,200,000.00 66,676.15 7.2800% Actual 360 120 120 1-Jul-12 7,425,803.20
36 9,000,000.00 69,702.11 8.0400% Actual 360 48 48 1-Jul-06 8,518,881.85
40 8,793,052.87 59,673.80 7.1900% Actual 360 120 119 1-Jun-12 7,714,557.96
42 8,548,654.76 59,034.31 7.3600% Actual 360 120 118 1-May-12 7,538,314.75
45 7,543,762.32 50,027.68 6.9600% Actual 360 120 119 1-Jun-12 6,578,770.86
46 7,221,336.46 49,457.78 7.2500% Actual 360 94 89 1-Dec-09 6,611,479.13
48 6,162,737.05 44,814.03 7.2500% Actual 360 94 89 1-Dec-09 5,334,973.57
50 5,995,033.13 39,716.87 6.9500% Actual 360 120 119 1-Jun-12 5,226,768.86
56 5,300,000.00 35,939.90 7.1900% Actual 360 120 120 1-Jul-12 4,646,826.77
57 5,260,000.00 36,025.29 7.2900% Actual 360 120 120 1-Jul-12 4,623,721.64
58 5,200,000.00 35,261.79 7.1900% Actual 360 120 120 1-Jul-12 4,559,150.56
59 5,122,000.00 34,214.50 7.0400% Actual 360 120 120 1-Jul-12 4,473,111.73
61 4,593,748.97 31,411.32 7.2600% Actual 360 120 118 1-May-12 4,040,552.69
66 4,373,555.35 31,803.50 7.2500% Actual 360 94 89 1-Dec-09 3,786,110.93
71 4,000,000.00 29,235.19 7.3750% Actual 360 120 120 1-Jul-12 3,237,964.38
72 3,975,959.43 28,912.27 7.2500% Actual 360 94 89 1-Dec-09 3,441,919.37
73 3,895,518.56 28,693.94 7.4500% Actual 360 120 119 1-Jun-12 3,163,717.81
75 3,697,209.78 25,668.55 7.4200% Actual 360 120 119 1-Jun-12 3,262,854.23
76 3,675,183.59 25,504.69 7.4100% Actual 360 120 118 1-May-12 3,244,909.60
84 3,214,560.07 21,850.19 7.2000% Actual 360 120 118 1-May-12 2,823,110.81
85 3,120,000.00 21,157.08 7.1900% Actual 360 120 120 1-Jul-12 2,735,489.28
89 2,716,394.96 18,758.57 7.3600% Actual 360 120 118 1-May-12 2,395,351.60
100 1,743,081.24 11,938.08 7.2500% Actual 360 94 89 1-Dec-09 1,595,874.88
101 1,553,832.40 10,641.95 7.2500% Actual 360 94 89 1-Dec-09 1,422,607.91
A-1
EXHIBIT B
Mortgage Loan Purchase Agreement, dated as of July 10, 2002.
CERTIFICATES:
Xxxxxxx Xxxxx Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2002-MW1
--------------------------------------------------------------------------------------------------
Aggregate Certificate
Principal Balance or
Class Initial Aggregate Certificate Percentage Interest of Class
Designation Principal Balance of Class to be Retained by Seller Purchase Price
--------------------------------------------------------------------------------------------------
Class Z-II N/A 100% $0.00
--------------------------------------------------------------------------------------------------
B-1
EXHIBIT C
Exceptions to the Representations and Warranties
SCHEDULE I, NUMBER 8:
LOAN ID # PROPERTY NAME
--------- -------------
2 Burbank Empire Center
19 TRW-Redondo Beach, CA
36 Radisson/Scanticon Hotel & Convention Center
SCHEDULE I, NUMBER 22:
LOAN ID # PROPERTY NAME
--------- -------------
42 Coliseum Lofts Apartments
89 Railroad Y Apartments
SCHEDULE I, NUMBER 34:
LOAN ID # PROPERTY NAME
--------- -------------
2 Burbank Empire Center
19 TRW-Redondo Beach, CA
36 Radisson/Scanticon Hotel & Convention Center
C-1
