EXHIBIT 99.3
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of September 17, 2004
(this "Agreement"), is entered into between KeyBank 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, commercial and manufactured housing community 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 of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of September 1, 2004 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc., as master servicer (in such capacity, the "Master Servicer"), and
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 (including the
schedules attached hereto) have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
September 17, 2004 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative
of X.X. Xxxxxx Securities Inc. ("JPMSI") and KeyBanc Capital Markets, a Division
of McDonald Investments Inc. ("KCM" and, together with Xxxxxxx Xxxxx and JPMSI
in such capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of September 17, 2004 (the "Certificate Purchase
Agreement"), with Xxxxxxx Xxxxx, for itself and as representative of JPMSI
(together in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (such
Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans delivered to the Purchaser pursuant to the terms hereof. The
Mortgage Loans are expected to have an aggregate principal balance of
$219,908,499 (the "KeyBank 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 KeyBank 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 $1,115,140,373 (subject to a variance of plus or minus 5%). The
purchase and sale of the Mortgage Loans shall take place on September 29, 2004
or such other date as shall be mutually acceptable to the parties to this
Agreement (the "Closing Date"). The consideration (the "Purchase Consideration")
for the Mortgage Loans shall be equal to (i) 104.4634% of the KeyBank Mortgage
Loan Balance as of the Cut-off Date, plus (ii) $954,565, which amount represents
the amount of interest accrued on the KeyBank Mortgage Loan Balance at the
related Net Mortgage Rate for the period from and including the Cut-off Date up
to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans. Effective as of the Closing
Date, subject only to receipt of the Purchase Consideration, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse (except as set forth in this Agreement), all the right, title
and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance proceeds. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(a) 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.
(b) 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) (A) 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
2004-KEY2, Commercial Mortgage Pass-Through Certificates, Series 2004-KEY2,
or in blank
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and (B) in the case of the A/B Loan Pair, a copy of the executed Mortgage
Note for the related B-Note Loan;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or 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 not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
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 Xxxxxxx Xxxxx
Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through Certificates,
Series 2004-KEY2 (or, in the case of the A/B Loan Pair, in favor of LaSalle
Bank National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through
Certificates, Series 2004-KEY2, and in its capacity as lead lender on
behalf of the B-Noteholder), 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 2004-KEY2, Commercial
Mortgage Pass-Through Certificates, Series 2004-KEY2 (or, in the case of
the A/B Loan Pair, in favor of LaSalle Bank National Association, as
trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Trust
2004-KEY2, Commercial Mortgage Pass-Through Certificates, Series 2004-KEY2,
and in its capacity as lead lender on behalf of the B-Noteholder), 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 pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
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(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, a UCC Financing Statement assignment, in form suitable for
filing in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2004-KEY2, Commercial
Mortgage Pass-Through Certificates, Series 2004-KEY2, as assignee (or, in
the case of the A/B Loan Pair, in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through Certificates,
Series 2004-KEY2, and in its capacity as lead lender on behalf of the
B-Noteholder), 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 (including the A/B Intercreditor Agreement)and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor;
(xi) an original or a copy of any loan agreement (if any), escrow or
reserve agreement (if any), security agreement (if any), management
agreement (if any), agreed upon procedures letter (if any), lockbox or cash
management agreements (if any), environmental reports (if any), or letter
of credit (if any), in each case relating to such Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of the franchise agreement (if any) and/or
franchisor comfort letter (if any).
In the case of the B-Note Loan, which mortgage loan is not being
transferred pursuant to this Agreement, but which will be serviced under the
Pooling and Servicing Agreement to the extent set forth in the A/B Intercreditor
Agreement, the documents identified in clauses (ii) through (vi) and (vii)
through (xii) above shall be deemed delivered in respect of such B-Note Loan to
the extent delivered with respect to the A-Note Trust Mortgage Loan.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(c) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of all assignments and UCC Financing Statements to the Trustee) cause
to be submitted for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, each
assignment of Mortgage, assignment of Assignment of Leases and any other
recordable documents relating to each such Mortgage Loan in favor of the Trustee
that is referred to in clause (iv) of the definition of "Mortgage File" and each
UCC Financing Statement assignment
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in favor of the Trustee and that is referred to in clause (viii) of the
definition of "Mortgage File." Each such assignment and UCC Financing Statement
assignment shall reflect that the recorded original should be returned by the
public recording office to the Trustee following recording, and each such
assignment and UCC Financing Statement assignment shall reflect that the file
copy thereof should be returned to the Trustee following filing; provided that
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the
Recording/Filing Agent shall obtain therefrom a certified copy of the recorded
original. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, then the Seller shall
prepare a substitute therefor or cure such defect or cause such to be done, as
the case may be, and the Seller shall deliver such substitute or corrected
document or instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to the Pooling and Servicing Agreement, to the then holder of
such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(d) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(e) 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.
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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 national banking association duly organized,
validly existing and in good standing under the laws of the United States
and the Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, as they
may be applied in the context of the insolvency of a national banking
association or (C) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's articles of association or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or might have consequences that would materially and adversely
affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any 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
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third person to the execution of this Agreement or the performance by the
Seller of its obligations under this Agreement (except to the extent such
consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Seller, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would, in the Seller's good faith and reasonable judgment, prohibit its
entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) Each Mortgage Loan was either:
(a) originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or similar institution
which is supervised and examined by a Federal or State authority, or by a
mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of the
foregoing, including the Seller, a "Qualified Originator"); or
(b) originated by a person that is not a Qualified Originator (a
"Non-Qualified Originator"), in which case,
(i) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which standards are
the same
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as the Seller's in all material respects), using application forms and
related credit documents approved by the Qualified Originator;
(ii) the Qualified Originator approved each application and related
credit documents before a commitment by the Non-Qualified Originator
was issued, and no such commitment was issued until the Qualified
Originator agreed to fund such Mortgage Loan;
(iii) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with the
Qualified Originator; and
(iv) the closing documents for the Mortgage Loan were prepared on
forms approved by the Qualified Originator, and, pursuant to the
Non-Qualified Originator's ongoing, standing relationship with the
Qualified Originator, then
(A) such closing documents reflect the Qualified Originator as
the original mortgagee, and such Mortgage Loan was actually funded
by the Qualified Originator at the closing thereof;
(B) such closing documents reflect the Non-Qualified Originator
as the original mortgagee, but include assignment documents
executed by the Non- Qualified Originator in favor of the Qualified
Originator at the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the successor and assign to
the Non-Qualified Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the closing thereof
and then acquired by the Qualified Originator from such
Non-Qualified Originator; or
(C) (z) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include assignment
documents executed by the Non- Qualified Originator in favor of the
Qualified Originator at the time of the closing of the Mortgage
Loan, reflecting the Qualified Originator as the successor and
assign to the Non-Qualified Originator, and the Mortgage Loan was
funded initially by the Qualified Originator at the closing thereof
and then acquired by the Qualified Originator from such
Non-Qualified Originator.
Each Mortgaged Property consists of one or more separate tax
parcels of real property upon which is located one or more commercial
structures and otherwise meets the requirements for eligibility under the
Secondary Mortgage Market Enhancement Act of 1984 for commercial property.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
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(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the 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 due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) except in the case of the Mortgage Loan identified on the
Mortgage Loan Schedule as being secured by Deerbrook Apartments (which Mortgage
Loan may not be substituted) substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan (which, for purposes of this clause (ii), shall
include an REO Loan) not later than the end of such 90-day period (and in no
event later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Collection Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that, unless the breach would
cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect
or Breach is capable of being cured but not within such 90-day period and the
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the Seller shall have an additional
90 days to complete such cure (or, failing such cure, to repurchase or
substitute the related Mortgage Loan (which, for the purpose of such repurchase
or substitution, shall include an REO Loan)); and provided, further, that with
respect to such additional 90-day period, the Seller shall have delivered an
officer's certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Document Defect or Breach will be
cured within the additional 90-day period; and provided, further, that no
Document Defect (other than with respect to the Specially Designated Mortgage
Loan Documents) 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 (which Document
Default or Breach materially and adversely affects the value of the related
Mortgage Loan or the interest of the Certificateholders therein) that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), and is not cured as provided for above, shall require the repurchase or
substitution of all such Crossed Loans unless (1) the weighted average debt
service coverage ratio for all the
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remaining Crossed Loans for the four calendar quarters immediately preceding
such repurchase or substitution is not less than the weighted average debt
service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, as of the Cut-off Date, and (2) the weighted average loan to-value
ratio for the remaining Crossed Loans determined at the time of repurchase or
substitution based upon an appraisal obtained by the Special Servicer at the
expense of the related Seller shall not be greater than the weighted average
loan-to-value ratio for all such Crossed Loans, including the affected Crossed
Loan as of the Cut-off Date; provided, that if such debt service coverage and
loan-to-value criteria are satisfied and any Crossed Loan (that is not the
Crossed Loan directly affected by the subject Breach or Document Defect) is not
so materially and adversely affected and therefore is not so repurchased or
substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Breach or
Document Defect) is held in the Trust Fund; and provided, further, that the
repurchase of less than all such Crossed Loans and the release of any Crossed
Loan from a cross-collateralization and cross-default provision shall be subject
to the delivery by the Seller to the Trustee, at the expense of the Seller, of
an Opinion of Counsel to the effect that such release would not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions; and provided, further, that the
Controlling Class Representative (if one is then acting) shall have consented to
the repurchase or substitution of the affected Crossed Loan, which consent shall
not be unreasonably withheld.
For a period of two years from the Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is any
uncured Document Defect or Breach known to the Seller, the Seller shall provide,
once every ninety days, the officer's certificate to the Trustee described above
as to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; provided, however, that, without limiting
the effect of the foregoing provisions of this Section 3(c), if such Document
Defect or Breach shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein
(subject to the last proviso in the second preceding sentence), the Seller shall
in all cases on or prior to the second anniversary of the Closing Date either
cause such Document Defect or Breach to be cured or repurchase or substitute for
the affected Mortgage Loan.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in Section 3(d)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not impair the ability of the other party to
exercise its remedies against the Primary Collateral securing the Crossed
Loan(s) held thereby.
If the exercise by one party would impair the ability of the other
party to exercise its remedies with respect to the Primary Collateral securing
the Crossed Loan(s) held by such party, then the Seller and the Purchaser shall
forbear from exercising such remedies until the Mortgage Loan Documents
evidencing and securing the relevant Crossed Loans can be modified in a manner
consistent with this Agreement to remove the threat of impairment as a result of
the
10
exercise of remedies. Any reserve or other cash collateral or letters of credit
securing the Crossed Loans shall be allocated between such Crossed Loans in
accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy for a breach of the representation in paragraph 30 on
Schedule I hereto shall be the cure of such breach by the Seller, which cure
shall be effected through the payment by the Seller of such costs and expenses
(without regard to whether such costs and expenses are material or not)
specified in such paragraph that have not, at the time of such cure, been
received by the Master Servicer or the Special Servicer from the related
Mortgagor and not a repurchase of the related Mortgage Loan. To the extent any
fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price (as defined
in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as
applicable, in the Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loan(s).
(e) This Section 3 provides the sole remedy available to the Purchaser,
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
11
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and the Purchaser has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
12
(g) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Purchaser, threatened against the Purchaser in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or other governmental agency or body, which default might have consequences that
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or might have consequences that would materially and
adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) A letter from the independent accounting firm of Ernst & Young LLP
in form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of September 17, 2004 among the
Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., JPMorgan Chase Bank, the
Purchaser, the Underwriters and the
13
Initial Purchasers. Both parties agree to use their best reasonable efforts to
perform their respective obligations hereunder in a manner that will enable the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of September 1,
2004, between the Seller and KeyCorp Real Estate Capital Markets, Inc., duly
executed by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omit to state therein a material fact necessary
in order to make the statements therein relating to the Mortgage Loans, in light
of the circumstances under which they were made, not misleading, and (ii) such
officer has carefully examined the Specified Portions of the Private Placement
Memorandum, dated as of September 17, 2004 (the "Memorandum") (pursuant to which
certain classes of the Private Certificates are being privately offered) and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of
14
the Mortgage Loans" (insofar as the information contained in Annex A-1 relates
to the Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Prospectus
Supplement, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex B to the Prospectus
Supplement entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Prospectus Supplement, entitled
"Structural and Collateral Term Sheet" (insofar as the information contained in
Annex C relates to the Mortgage Loans sold by the Seller hereunder), the
diskette which accompanies the Prospectus Supplement (insofar as such diskette
is consistent with Annex X-0, Xxxxx X-0 and/or Annex B), and the following
sections of the Prospectus Supplement (only to the extent that any such
information relates to the Seller or the Mortgage Loans sold by the Seller
hereunder and, without limitation, exclusive of any statements in such sections
that purport to describe the servicing and administration provisions of the
Pooling and Servicing Agreement): "Summary of Prospectus Supplement--Relevant
Parties--Mortgage Loan Sellers," "Summary of Prospectus Supplement--The Mortgage
Loans And The Mortgaged Real Properties," "Risk Factors" and "Description of the
Mortgage Pool". The "Specified Portions" of the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement (as attached as an exhibit to
the Memorandum).
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the articles of association and bylaws of
the Seller, and (iii) a certificate of good standing of the Seller issued by the
State of Delaware not earlier than thirty (30) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both the
Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser are parties with respect to
the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of
15
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 Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the 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. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
16
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party that obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party that commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall
17
bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 20. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
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
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
x/x XxxXxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxx, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxxx X. Xxxxx
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxx X. Xxxxxxx
Polsinelli Xxxxxxx Xxxxx Suelthaus PC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxx X. Xxx
-----------------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
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
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Due Dates for the Mortgage Loans in September 2004.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in September 2004 without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in September
2004, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable first
priority lien upon the related Mortgaged Property, prior to all other liens and
encumbrances, and there are no liens and/or encumbrances that are pari passu
with the lien of such Mortgage, in any event subject, however, to the following
(collectively, the "Permitted Encumbrances"): (a) the lien for current real
estate
I-1
taxes, ground rents, water charges, sewer rents and assessments not yet
delinquent or accruing interest or penalties; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment binding upon the title insurer); (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or "marked-up" commitment
binding upon the title insurer); (d) other matters to which like properties are
commonly subject; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (f) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Crossed Group; and (g)
if the related Mortgaged Property consists of one or more units in a
condominium, the related condominium declaration. The Permitted Encumbrances do
not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, as part of the related
Mortgage File, an Assignment of Leases (either as a separate instrument or as
part of the Mortgage) that relates to and was delivered in connection with each
Mortgage Loan and that establishes and creates a valid, subsisting and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
first priority lien on and security interest in, subject to applicable law, the
property, rights and interests of the related Mortgagor described therein,
except for Permitted Encumbrances and except that a license may have been
granted to the related Mortgagor to exercise certain rights and perform certain
obligations of the lessor under the relevant lease or leases, including, without
limitation, the right to operate the related leased property so long as no event
of default has occurred under such Mortgage Loan; and each assignor thereunder
has the full right to assign the same. The related assignment of any Assignment
of Leases not included in a Mortgage, executed and delivered in favor of the
Trustee is in recordable form (but for insertion of the name of the assignee and
any related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in Paragraph 13 below, enforceable assignment of such
Assignment of Leases from the relevant assignor to the Trustee. The related
Mortgage or related Assignment of Leases, subject to applicable law, provides
for the appointment of a receiver for the collection of rents or for the related
mortgagee to enter into possession to collect the rents or provides for rents to
be paid directly to the related mortgagee, if there is an event of default. No
person other than the related Mortgagor owns any interest in any payments due
under the related leases on which the Mortgagor is the landlord, covered by the
related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its
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designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) neither the related Mortgaged Property
nor any material portion thereof has been released from the lien of such
Mortgage and (c) the related Mortgagor has not been released from its
obligations under such Mortgage, in whole or in material part.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in Paragraph 8 below or that do
not materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) will inure
to the
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benefit of the Trustee as sole insured without the consent of or notice to the
insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan Documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in Paragraph 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). None of
the Mortgage Loan Documents contains any provision that expressly excuses the
related Mortgagor from obtaining and maintaining insurance coverage for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Depositor or
any transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release of
the related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such
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Environmental Report, if any, reveals that as of the date of the report there is
a material violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan Documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
Documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto
are covered by environmental insurance policies and each such policy is
noncancellable during its term, is in the amount at least equal to 125% of the
principal balance of the Mortgage Loan, has a term ending no sooner than the
date which is five years after the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan Documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage,
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treatment, transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. The related Mortgagor (or affiliate thereof)
has agreed to indemnify, defend and hold the Seller and its successors and
assigns harmless from and against any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by or asserted
against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as a
whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy meeting the requirements of the then current
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guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
Each Mortgaged Property located in California or in seismic zones 3 and 4 is
covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. Each Mortgaged Property located within
Florida or within 25 miles of the coast of North Carolina, South Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the full
insurable replacement cost of the improvements located on such Mortgaged
Property. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan Documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan Documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan Documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in Paragraph 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay
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such charge. For purposes of this representation and warranty, real property
taxes and assessments and other charges shall not be considered delinquent until
the date on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
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(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Trustee upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease has a currently effective term (including any
options exercisable by the holder of the related Mortgage) that extends not
less than 20 years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds (other than de
minimis amounts for minor casualties) with respect to the leasehold
interest will be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
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(xi) such Ground Lease provides that it may not be amended or modified
without the prior written consent of the mortgagee under such Mortgage
Loan, and any such action without such consent is not binding on such
mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or
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governmental authority against or affecting the Mortgagor under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Mortgagor or Mortgaged Property, would materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan or the current
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
Documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related
I-11
Mortgaged Properties with respect to such Mortgage Loans is at least equal to
the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Crossed Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, defeasance under each such
Mortgage Loan is only for the purpose of facilitating the disposition of a
Mortgaged Property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan Documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan Documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or caused
the inspection of, the related Mortgaged Property within the preceding twelve
(12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any
I-12
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers by devise or descent or by operation of law upon death,
transfers of less than a controlling interest in the Mortgagor, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Mortgagor,
transfers among affiliated Mortgagors with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter
I-13
into a lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed and/or
recorded, or submitted for filing and/or recording, in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more Uniform Commercial Code financing statements covering such
personal property have been filed or recorded (or have been sent for filing or
recording) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing of a Uniform Commercial Code financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Seller) executed and delivered in favor of the Trustee
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in Paragraph 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its Stated Maturity Date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. The related Mortgage Loan Documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor, or an entity controlled by a principal of such Mortgagor for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation proceeds. The related
Mortgage Loan Documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an
I-14
entity controlled by a principal of such Mortgagor, has agreed to indemnify the
mortgagee for damages resulting from violations of any applicable environmental
laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured by a
Ground Lease and is the subject of paragraph 18, the interest of the related
Mortgagor in the Mortgaged Property securing each Mortgage Loan is a fee simple
interest in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Mortgagor, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent monthly
payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan is covered by a secured creditor impaired property
policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
I-15
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of the
Mortgage Loans.
54. Mortgagor Formation or Incorporation. To the Seller's knowledge,
the related Mortgagor is a Person formed or incorporated in a jurisdiction
within the United States.
I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
Representation #2/Ownership of Mortgage Loans:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx This Mortgage Loan (the "A Loan") is one of two
loans in an A/B Mortgage Loan structure, both of
which are secured by the same mortgage instrument
and are cross-defaulted.
------------------------------------------------------------------------------------------------------------
28 Hidden Hills Apts A third party is entitled to a correspondent fee.
40 Los Angeles Self Storage
6 Beach Club & Viridian Lake
46 Oberlin Science Center
75 London Village Apts
77 Porterville Marketplace
93 Spring Cypress
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Representation #4/Lien; Valid Assignment:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx This Mortgage Loan (the "A Loan") is one of two
loans in an A/B Mortgage Loan structure, both of
which are secured by the same mortgage instrument
and are cross-defaulted.
------------------------------------------------------------------------------------------------------------
Representation #8/Title Insurance:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
88 Walgreens Lisle The Title Policy for the related Mortgage Loan
does not affirmatively insure that (i) the area
shown on the survey is the same as the property
legally described in the related Mortgage; or,
(ii) the related Mortgaged Property has access to
a public road. The related Title Policy does not
contain an express exclusion for such matters.
------------------------------------------------------------------------------------------------------------
Representation #10/Mortgage Provisions:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
77 Porterville Marketplace The terrorism coverage for the related Mortgage
Loan may be waived if it is determined to be
commercially unreasonable.
------------------------------------------------------------------------------------------------------------
46 Oberlin Science Center The related Mortgage Loan requires insurance that
is commercially available for similar properties
in the region in which the Mortgaged Property is
located.
------------------------------------------------------------------------------------------------------------
81 Sports Authority The related Mortgage Loan contains a provision
that expressly excuses the related Borrower from
obtaining and maintaining insurance coverage for
acts of terrorism.
------------------------------------------------------------------------------------------------------------
105 Shurgard of Stone's River Each related Mortgage Loan requires terrorism
00 Xxxxxxxx xx Xxxxxxxxx/Xxxxxxxxx coverage only if it is required by applicable law
or any governmental authority.
------------------------------------------------------------------------------------------------------------
Representation #12/Environmental Condition:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
33 H-K Valley Shopping Center An environmental insurance policy obtained with
respect to the Mortgaged Property is
noncancellable during its term, has a $0
deductible, a 15 year policy term, and the premium
has been repaid in full. The loss coverage on the
policy is capped at $7,500,000, which is
approximately 71% of the original principal
balance of the related Mortgage Loan.
------------------------------------------------------------------------------------------------------------
65 Babies R Us Plaza A Phase I environmental site assessment conducted
on the related Mortgaged Property identified an
abutting upgradient property on which a Speedway
gas station is operated as an environmental
concern. The Speedway property has been
determined to have existing environmental
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
contamination, which is currently under
investigation by the applicable regulatory
agency. A Phase II subsurface investigation
performed at the Mortgaged Property did not
identify any evidence of groundwater contamination
above regulatory levels; however, soils in two
locations were found to contain polyaromatic
hydrocarbons slightly above regulatory levels.
The Phase II consultant opined that the soil
conditions on the Mortgaged Property were caused
by the Speedway property contamination. Speedway
is currently working with the applicable
regulatory agency to address the contamination
emanating from its property.
------------------------------------------------------------------------------------------------------------
Representation #14/Insurance:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
46 Oberlin Science Center The related Mortgage Loan requires insurance that
is commercially available for similar properties
in the region in which the Mortgaged Property is
located.
------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxx With respect to each such Mortgage Loan, the
00 Xxxxxxxxx Xxxxx single tenant of the related Mortgaged Property,
Walgreens Co., is permitted to self insure for
property insurance and the requirement that
business interruption insurance be obtained was
waived because the related borrower's lease with
Walgreens Co. does not permit abatement of rent
following a casualty.
------------------------------------------------------------------------------------------------------------
73 Xxxxxxx Xxxx Warehouse The casualty insurance policy with respect to each
00 Xxxxxxx Xxxx Xxxxxxxxx Mortgaged Property contains an exclusion for, or
otherwise does not cover, acts of terrorism.
------------------------------------------------------------------------------------------------------------
Representation #21/No Equity Interest, Equity Participation or Contingent
Interest:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
6 Beach Club and Viridian Lake Key Real Estate Equity Capital, Inc. ("Investor"),
Apartments an affiliate of Seller, has a preferred equity
investment in F.M. Properties I, LLC, a Florida
limited liability company ("Member"), which owns
100% of the limited partnership interests in the
borrower and 100% of the membership interests in
the general partner of Borrower. Investor has
contributed $5,852,022.00 of capital to the
borrower in exchange for membership interests in
Member and a pledge of the managing membership
interest of Fort Xxxxx Property Investments Co.,
L.L.C., a Florida limited liability company ("Fort
Co.") in Member. Pursuant to the operating
agreement of Member, Investor is entitled to
certain cash distributions in consideration for
its cash contribution. If Investor does not
receive those cash distributions in accordance
with the terms of the operating agreement,
Investor may (i) remove Fort Co. as managing
member and become the new managing member of
Member, (ii) exercise an option to put its
interests in Member and cause Fort Co. to purchase
all interests of Member; or (ii) foreclose on the
pledged interest and become the sole member of
Member. Any claims of Investor to payments,
distributions or other amounts payable pursuant to
the operating agreement are subordinate to
payments due under the related Mortgage Loan.
------------------------------------------------------------------------------------------------------------
Representation #23/Other Mortgage Loans:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
33 H-K Valley Shopping Center With respect to each such Mortgage Loan, the
48 Xxxxxxx Commons Shopping Center related Borrower is permitted to encumber the
CVS/Xxxx Medical Office Building related Mortgaged Property with a subordinate
52 mortgage with lender's prior written consent and
satisfaction of specified conditions, including
specified LTV and DSCR, rating agency
confirmation, execution of an intercreditor and
subordination agreement.
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx Shopping Center This Mortgage Loan (the "A Loan") is one of two
loans in an A/B Mortgage Loan structure, both of
which are secured by the same mortgage instrument
and are cross-defaulted.
------------------------------------------------------------------------------------------------------------
Representation #27/Cross-Collateralization:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx Shopping Center This Mortgage Loan (the "A Loan") is one of two
loans in an A/B Mortgage Loan structure, both of
which are secured by the same mortgage instrument
and are cross-defaulted.
------------------------------------------------------------------------------------------------------------
Representation #28/Releases of Mortgaged Properties:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
15 Castaic Village Shopping Center The related Mortgage Loan requires the mortgagee
to release a portion of the Mortgaged Property
consisting of excess, unimproved land upon the
satisfaction of certain legal and underwriting
requirements.
------------------------------------------------------------------------------------------------------------
77 London Village Apartments The related Mortgage Loan requires the mortgagee
to release a portion of the Mortgaged Property
consisting of land already developed as public
roadways
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
upon the satisfaction of certain legal
and underwriting requirements.
------------------------------------------------------------------------------------------------------------
96 Xxxxxxx Plaza Shopping Center The related Mortgage Loan requires the mortgagee
to release a portion of the Mortgaged Property
consisting of excess, unimproved land upon the
satisfaction of certain legal and underwriting
requirements.
------------------------------------------------------------------------------------------------------------
100 Rubicon in Xxxxxxx Phase I The related Mortgage Loan is cross-collateralized
with Loan No. ____ -- Rubicon in Xxxxxxx Phase
II. The Mortgage Loan requires the mortgagee to
release the Rubicon in Xxxxxxx Phase II Mortgaged
Property upon a sale of the related Mortgaged
Property and the satisfaction of certain
underwriting requirements.
------------------------------------------------------------------------------------------------------------
101 Rubicon in Xxxxxxx Phase II The related Mortgage Loan is cross-collateralized
with Loan No. ____ -- Rubicon in Xxxxxxx Phase I.
The Mortgage Loan requires the mortgagee to
release the Rubicon in Xxxxxxx Phase I Mortgaged
Property upon a sale of the related Mortgaged
Property and the satisfaction of certain
underwriting requirements.
------------------------------------------------------------------------------------------------------------
Representation #34/Due-on-Sale:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
15 Castaic Village Shopping Center Members of each related Borrower may obtain
CVS/Xxxx Medical Office Building financing secured by pledges of their respective
52 ownership interest in the related Borrower upon
the prior written consent of the holder of the
related Mortgage and the satisfaction of certain
conditions, including specified debt service
coverage and loan to value ratios, execution of an
intercreditor and subordination agreement by an
institutional mezzanine lender, establishment of a
lockbox arrangement
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
and receipt of rating agency confirmation.
------------------------------------------------------------------------------------------------------------
Representation #35/Single Purpose Entity:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx Shopping Center This Mortgage Loan (the "A Loan") is one of two
loans in an A/B Mortgage Loan structure, both of
which are secured by the same mortgage instrument
and are cross-defaulted.
------------------------------------------------------------------------------------------------------------
52 CVS/Xxxx Medical Office Building The related Borrower is not required to be a
Single Purpose Entity.
------------------------------------------------------------------------------------------------------------
48 Xxxxxxx Commons Shopping Center Although the related Borrower is required to be a
Single Purpose Entity, the related Borrower is
permitted to encumber the related Mortgaged
Property with a subordinate mortgage with lender's
prior written consent and satisfaction of
specified conditions, including specified LTV and
DSCR, rating agency confirmation, execution of a
lockbox agreement and intercreditor and
subordination agreement.
------------------------------------------------------------------------------------------------------------
Representation #37/Tax Parcels:
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
100 Rubicon in Xxxxxxx Phase I The related Borrower is required to take all
appropriate steps to create a separate tax lot for
the Mortgaged Property prior to the earlier of
(i) March 31, 2005 or (ii) the issuance of real
estate tax bills for the year 2005. The only other
real property currently included in the tax parcel
is the real property that secures Loan No. _______
- Rubicon in Xxxxxxx Phase II with which the
related Mortgage Loan is cross-collaterialized.
------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
101 Rubicon in Xxxxxxx Phase II The related Borrower is required to take all
appropriate steps to create a separate tax lot for
the Mortgaged Property prior to the earlier of
(i) March 31, 2005 or (ii) the issuance of real
estate tax bills for the year 2005. The only
other real property currently included in the tax
parcel is the real property that secures Loan No.
____ - Rubicon in Xxxxxxx Phase I with whom the
related Mortgage Loan is cross-collaterialized.
------------------------------------------------------------------------------------------------------------
Representation #47
------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
------------------------------------------------------------------------------------------------------------
88 Walgreens Lisle The related Mortgage requires the related Borrower
to furnish (i) annual income and expense
statements with respect to the related Mortgaged
Property; (ii) annual rent rolls with respect to
the Mortgaged Property; and (iii) quarterly income
and expense statements with respect to the related
Mortgaged Property upon the request of Lender
following an event of default.
------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxx Xxxxxxxxx With respect to each such Mortgage Loan, the
69 Xxxxxxx Xxxx Warehouse related Mortgage requires the related Borrower to
furnish (i) annual income and expense statements
with respect to the related Mortgaged Property;
(ii) annual rent rolls with respect to the
Mortgaged Property; (iii) current financial
statements of the related Borrower on an annual
basis; and (iv) quarterly income and expense
statements with respect to the related Mortgaged
Property upon the request of Lender.
------------------------------------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATION 12)
Loan No. 33 H-K Valley Shopping Center
EXHIBIT A
MORTGAGE LOAN SCHEDULE
------------------------------------------------------------------------------------------------------------------------------------
LOAN # PROPERTY NAME ORIGINATOR PROPERTY TYPE ADDRESS CITY COUNTY
------------------------------------------------------------------------------------------------------------------------------------
6 Beach Club and Viridian Lake Key Multifamily 3621 and 0000 Xxxxxxx Xxxxxx Xxxx Xxxxx Xxx
Apartments
15 Castaic Village Shopping Center Key Retail 31810 to 00000 Xxxxx Xxxxxxx Xxxx Castaic Los Angeles
19 First & Main South Key Retail 0000-0000 Xxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx El Paso
28 Hidden Hills Apartments Key Multifamily 0000 Xxxxxx Xxxxx Xxxxx Kalamazoo Kalamazoo
00 Xxxxxxxxx Xxxxxxxxxx Xxx Multifamily 0000 Xxxxxx Xxxxx Xxxxx Hillsborough
33 H-K Valley Shopping Center Key Retail 17607-17643 Xxxxxxx Way Van Nuys Los Angeles
36 Widewater Commons Shopping Key Retail 0000 Xxxxxxxxxx Xxxxxxx Knightdale Wake
Center
40 Los Angeles Self Storage Key Self Storage 0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxxxx Los Angeles
46 Oberlin Science Center Key Industrial 0000 Xxxxxxx Xxxxx Xxx Xxxxx San Diego
48 Xxxxxxx Commons Shopping Center Key Retail 9208 X.X.X. Xxxxxxxx Freeway Dallas Dallas
50 Skyview Plaza Shopping Center Key Retail 00000 Xxxxx Xxxxx 000 Xxxx Xxxxxxxxx Xxxxxxxxxx
52 CVS/Xxxx Medical Office Building Key Mixed Use 0000 XXX Xxxxxxx Xxxxxx Xxxxxx
53 Walgreens Vista Key Retail 000 Xxxxx Xxxxx Xx Xxxxxx Xxxxx Xxx Xxxxx
64 Albertson's Center Key Retail 6945-7095 Austin Bluffs Parkway Colorado Springs El Paso
65 Babies R Us Plaza Key Retail 00000 Xxxxxx Xxxx Xxxxx Olmsted Cuyahoga
66 Xxxxxx Self Storage I Key Self Storage 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Davidson
00 Xxxxx Xxx Xxxxxxxxxx Xxx Multifamily 000 Xxxx Xxxxxx Xxxxx Xxxxxxx King
69 Circuit City Key Retail 0000 Xxxxxx Xxxx Xxxxxxxx Xxxxxxxxxx
73 Xxxxxxx Xxxx Warehouse Key Industrial 1141 & 0000 Xxxx 00xx Xxxxxx Mishawaka St. Xxxxxx
74 Deerbrook Apartments (16) Key Multifamily 000-000 Xxxxxxxxx Xxxxxx Knob Noster Xxxxxxx
00 Xxxxxx Xxxxxxx Xxxxxxxxxx Xxx Multifamily 000 Xxxxxxxx Xxxxx Xxxxxx Xxxxxxx
00 Xxxxxxxxxxx Xxxxxxxxxxx Xxx Retail 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx
78 Shurgard Self Storage Key Self Storage Various Various Various
78.01 Shurgard of Southaven Key Self Storage 0000 Xxxxxxx Xxxx Xxxx Xxxx Xx Xxxx
78.02 Shurgard of Wolfchase Key Self Storage 0000 Xxxxxxx 00 Xxxxxxx Xxxxxx
81 Sports Authority Key Retail 0000 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxx Xxxxxxxx Beach
City
84 TDK Building Key Office 1221 Business Center Drive Mount Prospect Xxxx
87 Park at Fife Apartments Key Multifamily 0000 00xx Xxxxxx Xxxx Xxxx Pierce
00 Xxxxxxxxx Xxxxx Xxx Retail 0000 Xxxxx Xxxxxx Xxxxx DuPage
89 Petal Shopping Center Key Retail 000 X.X. Xxxxxxx 00 Petal Xxxxxxx
93 Spring Cypress Ground Leases Key Retail 22601-22609 Tomball Parkway Houston Xxxxxx
96 Xxxxxxx Plaza Shopping Center Key Retail 0000 Xxxx Xxxxxxx Xxxx Xxxx Xxxxxxx Maricopa
100 Rubicon in Windward Phase I Key Industrial 0000 Xxxxxxxx Xxxxx Alpharetta Xxxxxx
101 Rubicon in Windward Phase II Key Industrial 0000 Xxxxxxxx Xxxxx Alpharetta Xxxxxx
105 Shurgard of Stones River Key Self Storage 000 Xxxxx Xxxxxxxx Xxxx Murfreesboro Xxxxxxxxxx
109 Xxxxxx Self Storage 2 Key Self Storage 0000 Xxxxxxx Xxxxx Xxxxxxxxx Davidson
000 XxXxxxxx Xxxxxxxx Xxxxxxxx Xxx Office 00000 Xxxxx 00xx Xxxxxx Xxxxxxxxxx Maricopa
Center
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PRIMARY MASTER
ORIGINAL SERVICING SERVICING NET
MONTHLY DEBT MORTGAGE FEE RATE FEE RATE MORTGAGE
LOAN # STATE ZIP CODE CUTOFF BALANCE ORIGINAL BALANCE SERVICE RATE (%) (%) (%) RATE (%)
------------------------------------------------------------------------------------------------------------------------------------
0 XX 00000 32,150,000.00 32,150,000.00 127,669.73 4.7000 0.0300 0.0200 4.5980
15 CA 91384 20,588,673.52 20,648,000.00 119,579.51 5.6800 0.0300 0.0200 5.6280
19 CO 80922 16,382,161.58 16,500,000.00 107,983.27 4.9000 0.0300 0.0200 4.8480
28 XX 00000 11,040,000.00 11,040,000.00 54,847.33 5.8800 0.0300 0.0200 5.7780
00 XX 00000 10,579,937.39 10,600,000.00 60,119.15 5.4900 0.0300 0.0200 5.4380
33 CA 91406 9,987,659.05 10,012,000.00 66,108.00 6.2600 0.0300 0.0200 6.2080
00 XX 00000 9,690,667.44 9,715,000.00 63,248.75 6.1100 0.0300 0.0200 6.0580
40 CA 90017 8,698,945.08 8,725,000.00 49,594.35 5.5100 0.0300 0.0200 5.4080
46 CA 92121 7,487,698.53 7,500,000.00 45,207.67 6.0500 0.0300 0.0200 5.9480
48 XX 00000 6,344,583.30 6,350,000.00 37,623.55 5.8900 0.0300 0.0200 5.8380
50 XX 00000 6,240,000.00 6,240,000.00 29,946.22 5.6800 0.0300 0.0200 5.6280
52 XX 00000 5,600,000.00 5,600,000.00 33,466.90 5.9700 0.0300 0.0200 5.9180
53 CA 92084 5,532,437.76 5,550,000.00 30,647.31 5.2500 0.0300 0.0200 5.1980
64 CO 80918 4,437,724.86 4,450,000.00 27,619.99 5.6100 0.0300 0.0200 5.5580
65 XX 00000 4,300,000.00 4,300,000.00 19,945.73 5.4900 0.0300 0.0200 5.4380
66 TN 37209 4,186,317.02 4,191,000.00 28,718.37 6.6600 0.0300 0.0200 6.6080
68 XX 00000 4,092,785.95 4,100,000.00 24,004.68 5.7800 0.0300 0.0200 5.7280
69 TN 37027 4,081,887.31 4,100,000.00 26,166.31 5.9000 0.0300 0.0200 5.8480
73 IN 46544 3,809,634.00 3,825,000.00 24,644.53 6.0000 0.0300 0.0200 5.9480
74 MO 65336 3,661,821.71 4,100,000.00 23,311.94 6.3500 0.0300 0.0200 6.2980
75 XX 00000 3,643,724.72 3,650,000.00 21,579.47 5.8700 0.0300 0.0200 5.7680
77 CA 93257 3,594,048.35 3,600,000.00 21,630.13 6.0200 0.0300 0.0200 5.9180
78 Various Various 3,400,000.00 3,400,000.00 21,389.62 5.7500 0.0300 0.0200 5.6980
78.01 XX 00000 1,960,109.29 1,960,109.29
78.02 XX 00000 1,439,890.71 1,439,890.71
00 XX 00000 3,295,446.74 3,300,000.00 21,850.76 6.2900 0.0300 0.0200 6.2380
84 IL 60056 3,100,000.00 3,100,000.00 16,585.00 6.4200 0.0300 0.0200 6.3680
87 XX 00000 2,992,231.86 3,000,000.00 19,219.16 5.9400 0.0300 0.0200 5.8880
88 IL 60532 2,986,746.85 3,000,000.00 19,146.08 5.9000 0.0300 0.0200 5.8480
89 XX 00000 2,843,226.08 2,850,000.00 17,976.47 6.4800 0.0300 0.0200 6.4280
93 XX 00000 2,720,565.86 2,725,000.00 16,478.17 6.0800 0.0300 0.0200 5.9780
96 AZ 85017 2,596,248.16 2,600,000.00 16,751.84 6.0000 0.0300 0.0200 5.9480
000 XX 00000 2,409,995.90 2,412,500.00 15,280.34 6.1500 0.0300 0.0200 6.0980
000 XX 00000 2,409,995.86 2,412,500.00 15,280.34 6.1500 0.0300 0.0200 6.0980
000 XX 00000 2,225,000.00 2,225,000.00 13,997.62 5.7500 0.0300 0.0200 5.6980
000 XX 00000 1,498,334.34 1,500,000.00 10,306.91 6.6900 0.0300 0.0200 6.6380
000 XX 00000 1,300,000.00 1,300,000.00 8,440.42 6.7600 0.0300 0.0200 6.7080
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ACCRUAL MATURITY AMORT REM.
LOAN # PROPERTY NAME TYPE TERM REM. TERM DATE ARD DATE TERM AMORT GROUND LEASE
------------------------------------------------------------------------------------------------------------------------------------
6 Beach Club and Viridian Lake Actual/360 84 79 4/1/11 4/1/11 360 360 No
Apartments
15 Castaic Village Shopping Center Actual/360 120 117 6/1/14 6/1/34 360 357 No
19 First & Main South Actual/360 120 117 6/1/14 6/1/14 240 237 No
28 Hidden Hills Apartments Actual/360 84 83 8/1/11 8/1/11 360 360 No
29 Brookside Apartments Actual/360 84 82 7/1/11 7/1/34 360 358 No
33 H-K Valley Shopping Center Actual/360 120 118 7/1/14 7/1/14 300 298 No
00 Xxxxxxxxx Xxxxxxx Shopping Actual/360 120 118 7/1/14 7/1/29 300 298 No
Center
40 Los Angeles Self Storage Actual/360 84 81 6/1/11 6/1/11 360 357 No
46 Oberlin Science Center Actual/360 120 118 7/1/14 7/1/14 360 358 No
48 Xxxxxxx Commons Shopping Center Actual/360 120 119 8/1/14 8/1/14 360 359 No
00 Xxxxxxx Xxxxx Shopping Center Actual/360 120 119 8/1/14 8/1/14 300 300 No
52 CVS/Xxxx Medical Office Actual/360 120 120 9/1/14 9/1/14 360 360 No
Building
53 Walgreens Vista Actual/360 120 117 6/1/14 6/1/34 360 357 No
64 Albertson's Center Actual/360 120 118 7/1/14 7/1/14 300 298 No
65 Babies R Us Plaza Actual/360 120 115 4/1/14 4/1/34 324 324 No
66 Xxxxxx Self Storage I Actual/360 120 119 8/1/14 8/1/29 300 299 No
68 Union Bay Apartments Actual/360 120 118 7/1/14 7/1/14 360 358 No
69 Circuit City 30/360 120 117 6/1/14 6/1/14 300 297 No
73 Xxxxxxx Xxxx Warehouse Actual/360 120 117 6/1/14 6/1/14 300 297 No
74 Deerbrook Apartments (16) Actual/360 180 172 1/1/19 1/1/19 360 352 No
75 London Village Apartments Actual/360 120 118 7/1/14 7/1/14 360 358 No
77 Porterville Marketplace Actual/360 120 118 7/1/14 7/1/14 360 358 No
78 Shurgard Self Storage Actual/360 120 120 9/1/14 9/1/14 300 300 No
78.01 Shurgard of Southaven No
78.02 Shurgard of Wolfchase No
81 Sports Authority 30/360 180 179 8/1/19 8/1/19 300 299 No
84 TDK Building 30/360 120 118 7/1/14 7/1/14 300 300 No
87 Park at Fife Apartments Actual/360 120 118 7/1/14 7/1/14 300 298 No
88 Walgreens Lisle 30/360 240 237 6/1/24 6/1/24 300 297 No
89 Petal Shopping Center Actual/360 120 117 6/1/14 6/1/14 360 357 No
93 Spring Cypress Ground Leases Actual/360 120 118 7/1/14 7/1/34 360 358 No
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 30/360 120 119 8/1/14 8/1/14 300 299 No
100 Rubicon in Windward Phase I Actual/360 120 119 8/1/14 8/1/14 324 323 No
101 Rubicon in Windward Phase II Actual/360 120 119 8/1/14 8/1/14 324 323 No
105 Shurgard of Stones River Actual/360 120 120 9/1/14 9/1/14 300 300 No
109 Xxxxxx Self Storage 2 Actual/360 120 119 8/1/14 8/1/29 300 299 No
000 XxXxxxxx Xxxxxxxx Xxxxxxxx 30/360 120 120 9/1/14 9/1/14 360 360 No
Center
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ENVIRONMENTAL CROSS- CROSS- DEFEASANCE LETTER LOCKBOX
LOAN # ARD ARD STEP UP (%) POLICY DEFAULTED COLLATERALIZED ALLOWED OF CREDIT IN PLACE
------------------------------------------------------------------------------------------------------------------------------------
6 No No No No Yes No Yes
15 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
19 No No No No Yes No No
28 No No No No Yes No Yes
29 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
33 No Yes No No Yes No No
36 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
40 No No No No Yes No No
46 No No No No Yes No No
48 No No No No Yes No No
50 No No No No Yes No No
52 No No No No Yes No No
53 Yes Greater of: (i) Initial Interest No No No Yes No Yes
Rate plus 2% or (ii) Treasury Rate
plus 2%.
64 No No No No Yes No No
65 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
66 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
68 No No No No No No No
69 No No No No No No No
73 No No No No No No No
74 No No No No Yes No No
75 No No No No Yes No No
77 No No No No Yes No No
78 No No No No Yes No No
78.01 No No No
78.02 No No No
81 No No No No No No No
84 No No No No No Yes No
87 No No No No Yes No No
88 No No No No No No No
89 No No No No No No No
93 Yes Greater of: (i) Initial Interest No No No No No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
96 No No No No No No No
100 No No Yes Yes No No No
101 No No Yes Yes No No No
105 No No No No Yes No No
109 Yes Greater of: (i) Initial Interest No No No Yes No No
Rate plus 2% or (ii) Treasury Rate
plus 2%.
113 No No No No No No No
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UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
ENG. ENV. TI/LC RE TAX INS. OTHER
LOAN # PROPERTY NAME HOLDBACK AMT RESERVE RESERVE RESERVE RESERVE RESERVE RESERVE
------------------------------------------------------------------------------------------------------------------------------------
6 Beach Club and Xxxxxxxx Xxxx
Xxxxxxxxxx
00 Xxxxxxx Xxxxxxx Shopping Center 100,000 37,992 11,393
19 First & Main South 47,250 12,230 5,968
28 Hidden Hills Apartments 34,400 10,236
29 Brookside Apartments 7,552 159,307 10,481
33 H-K Valley Shopping Center 2,112 6,250 25,600 17,821
00 Xxxxxxxxx Xxxxxxx Shopping 703 32,585 5,631
Center
40 Los Angeles Self Storage 625 20,821 6,270
46 Oberlin Science Center 300,000 13,938 17,351 15,000
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx 3,208 85,134 24,566 48,000
00 Xxxxxxx Xxxxx Shopping Center 1,775 6,008 2,987 7,500
52 CVS/Xxxx Medical Office 42,275 4,583 64,457 4,799 170,954
Building
53 Walgreens Vista 21,965.00
64 Albertson's Center 23,426 2,389 1,854 206,540
65 Babies R Us Plaza 100,000 29,581 1,340 1,500
66 Xxxxxx Self Storage I 110,000 625 51,032 1,441 7,500
00 Xxxxx Xxx Xxxxxxxxxx
00 Xxxxxxx Xxxx 50,000.00
73 Xxxxxxx Xxxx Warehouse
74 Deerbrook Apartments (16) 4,879 8,216 2,237
75 London Village Apartments 162,106.00 10,441 17,696
00 Xxxxxxxxxxx Xxxxxxxxxxx 1,000 9,030 2,994
78 Shurgard Self Storage
78.01 Shurgard of Southaven
78.02 Shurgard of Wolfchase
81 Sports Authority
84 TDK Building
87 Park at Fife Apartments 31,250 26,683 9,311
00 Xxxxxxxxx Xxxxx 50,000
89 Petal Shopping Center 1,761 14,806 590
93 Spring Cypress Ground Leases $427,000 ($382,000
B of A Permit
Deposit) &
$45,000 (B of A
Estoppel Deposit)
96 Xxxxxxx Plaza Shopping Center
100 Rubicon in Windward Phase I 38,489 150,000
101 Rubicon in Windward Phase II 38,489
105 Shurgard of Stones River
109 Xxxxxx Self Storage 2 3,625 22,128 1,062 5,000
000 XxXxxxxx Xxxxxxxx Business 10,025
Center
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MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY OTHER
CAPEX TI/LC RE TAX INS. OTHER MONTH GRACE LOAN
LOAN # UPFRONT OTHER RESERVE DESCRIPTION RESERVE RESERVE RESERVE RESERVE RESERVE DESCRIPTION PERIOD GROUP
------------------------------------------------------------------------------------------------------------------------------------
6 15,040 49,321 19,823 5 2
15 1,058 12,664 2,848 5 1
19 6,115 1,194 5 1
28 2,750 24,262 5,118 5 2
29 7,552 19,913 10,481 5 2
33 2,112 6,250 8,533 3,564 5 1
36 703 4,655 1,877 5 1
40 6,940 1,045 5 1
46 Escrow released once clean estoppels 562 2,917 3,484 1,798 5 1
obtained on or before August 16, 2004.
48 Holdback for unfinished space 698 3,208 7 1
50 For legal fees associated with TIC roll-up. 1,340 1,775 5 1
52 Pain Net Finish Escrow (95,000); Build Out 571 4,583 5 1
Lease Up Escrow (50,000), Pain Net Free
Rent Escrow (25,954)
53 5 1
64 The Copestone Company & Central States 796 309 5 1
Roofing Estoppel Escrow
65 Escrow for clean estoppel from Babies R Us 961 700 7,395 670 5 1
66 TIC Roll-up funds. 1,349 5 1
68 5 2
69 5 1
73 5 1
74 4,879 3,100 2,982 5 2
75 2,333 5,221 1,966 5 2
77 888 1,000 2,474 748 5 1
78 5 1
78.01 1
78.02 1
81 5 1
84 5 1
87 2,600 3,812 1,552 5 2
88 5 1
89 377 1,761 2,961 10 1
93 5 1
96 5 1
100 Lease-up Escrow 4,277 5 1
101 4,277 5 1
105 5 1
109 TIC roll up funds. 758 5 1
113 5 1
