EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of November 1,
2003 (this "Agreement"), is entered into between JPMorgan Chase Bank (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily, manufactured housing and commercial mortgage loans
(the "Mortgage Loans") identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Exhibit A. The Purchaser intends to deposit the Mortgage
Loans, along with certain other mortgage loans (the "Other Mortgage Loans"),
into a trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of the Cut-off Date, among the Purchaser as depositor,
KeyCorp Real Estate Capital Markets, Inc., as master servicer (in such capacity,
the "Master Servicer"), ARCap Servicing, Inc., as special servicer (in such
capacity, the "Special Servicer"), LaSalle Bank National Association, as trustee
(the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used
but not defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to
purchase, the Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan Schedule may be amended to reflect the actual Mortgage Loans
delivered to the Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have an aggregate principal balance of $139,023,087 (the "JPMorgan
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 JPMorgan
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 $1,055,546,925 (subject to a variance of plus or minus 5%). The
purchase and sale of the Mortgage Loans shall take place on November 20, 2003 or
such other date as shall be mutually acceptable to the parties to this Agreement
(the "Closing Date"). The consideration (the "Purchase Price") for the Mortgage
Loans shall be equal to (A) (i) 100.97877% of the Merrill Mortgage Loan Balance
as of the Cut-off Date, plus (ii) $396,291, which amount represents the amount
of interest accrued on the JPMorgan Mortgage Loan Balance at the related Net
Mortgage Rate for the period from and including the Cut-off Date up to but not
including the Closing Date, less (B) the principal amounts or percentage
interests of the Certificates set forth on Exhibit B attached hereto (the
"Retained Certificates").
The Purchase Price shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt
of the Purchase Price, the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee on or before the
Closing Date, the documents and instruments specified below with respect to each
Mortgage Loan (each, a "Mortgage File"). All Mortgage Files so delivered will be
held by the Trustee in escrow at all times prior to the Closing Date. Each
Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements thereon, endorsed on its face
or by allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2003-KEY1, Commercial Mortgage Pass-Through
Certificates, Series 2003-KEY1, or in blank;
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case 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 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
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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 2003-KEY1, Commercial Mortgage Pass-Through
Certificates, Series 2003-KEY1, 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 2003-KEY1, Commercial Mortgage Pass-Through
Certificates, Series 2003-KEY1, 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;
(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 Amendment,
in form suitable for filing in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2003-KEY1, Commercial Mortgage Pass-Through
Certificates, Series 2003-KEY1, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or
ground lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of
the Mortgagor and any intercreditor agreement relating to mezzanine
debt related to the Mortgagor;
(xi) copies of any loan agreement (if any), escrow agreement
(if any), security agreement (if any), management agreement (if any),
franchise agreement (if any), agreed-upon procedures letter (if any),
lockbox or cash management agreement (if any), environmental reports,
or letter of credit relating to a Mortgage Loan;
(xii) Mortgage Loan checklist; and
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(xiii) with respect to any Companion Loan, all of the above
documents (if any) with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each Mortgage Note
related to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client
privileged communication and internal credit analysis of the Seller) relating to
each Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall promptly
be delivered or caused to be delivered by the Seller to the Master Servicer or
at the direction of the Master Servicer to the appropriate sub-servicer,
together with any related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
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 banking corporation duly organized,
validly existing and in good standing under the laws of the State of
New York and Seller has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement by
it, and has the power and authority to execute, deliver and perform
this Agreement and all transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, 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, 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
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
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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 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 Price. The
consideration received by
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the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration
for the Mortgage Loans. The Seller will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the sale of the
Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud any
of the creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Exhibit
C and Section 20 of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach pursuant to Section 2.03(a) of the Pooling and
Servicing Agreement relating to a Mortgage Loan, then the Seller shall not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the interest of
the Certificateholders therein, cure such Document Defect or Breach, as the case
may be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions solely due to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which for purposes of this
clause (i) shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which for purposes of this clause (ii) shall include an
REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Certificate Account, any Substitution Shortfall Amount in
connection therewith; provided, however, that unless the breach would cause the
Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect or
Breach is capable of being cured but not within such 90-day period and the
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the Seller shall have an additional
90 days to complete such cure (or, failing such cure, to repurchase or
substitute the related Mortgage Loan (which for purposes of such repurchase
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth the reason such Document Defect or
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Document Defect or Breach will be cured
within the additional 90-day period; and provided; further, that no Document
Defect (other than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground Lease, any intervening assignment required to create a complete
assignment to the Trustee or any letter of credit) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
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value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations. A
Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans (each, a "Crossed Loan"),
and is not cured as provided for above, shall require the repurchase or
substitution of all such cross-collateralized and cross-defaulted Mortgage Loans
unless (1) the debt service coverage ratio for all the remaining related Crossed
Loans for the four calendar quarters immediately preceding such repurchase or
substitution is not less than the greater of the debt service coverage ratio for
all such related Crossed Loans, including the affected Crossed Loan, for the
four calendar quarters immediately preceding such repurchase or substitution and
1.25x, and (2) the weighted average loan-to-value ratio for the remaining
related 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 lesser of (a) the weighted average
loan-to-value ratio for all such related Crossed Loans, including the affected
Crossed Loan, and (b) 75%; provided, that if such debt service coverage test is
satisfied and any Crossed Loan is not so materially and adversely affected and
therefore is not so repurchased or substituted, then such Crossed Loan shall be
released from its cross-collateralization and cross-default provision so long as
such Crossed Loan is held in the Trust Fund; 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 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 borrower
under such Mortgage Loan is an intended third party beneficiary of this
provision, which shall not be modified without such borrower's consent; and
provided, further, that the Majority Subordinate Certificateholder shall have
consented to the repurchase 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. Notwithstanding the
foregoing, the delivery of a commitment to issue a policy of lender's title
insurance as described in Paragraph 8 of Schedule I hereto in lieu of the
delivery of the actual policy of lender's title insurance shall not be
considered a Document Defect or Breach with respect to any Mortgage File if such
actual policy of insurance is delivered to the Trustee or a Custodian on its
behalf not later than the 90th day following the Closing Date.
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To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed in Section 3(c)
above while the Trustee continues to hold any other Crossed Loans in such
Crossed Group (as defined in Section 20 of this Agreement), 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 Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee, so long as such exercise does not impair the ability of the other party
to exercise its remedies against the Primary Collateral.
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 Loans 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
that complies with this Agreement to remove the threat of impairment as a result
of the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan Documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that any 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 of such Mortgage Loans.
(d) In connection with any permitted repurchase or
substitution of one or more Mortgage Loans contemplated hereby, upon receipt of
a certificate from a Servicing Officer certifying as to the receipt of the
Purchase Price (as defined in the Pooling and Servicing Agreement) or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or substituted Mortgage Loan, as applicable, (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
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.
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(f) The Seller hereby covenants and agrees that, within 60
days after the Closing Date, the Seller shall (x) notify each provider of a
letter of credit for a Mortgage Loan, that the Master Servicer or the Special
Servicer on behalf of the Trust for the benefit of the Certificateholders shall
be the beneficiary under each such letter of credit, and (y) make a written
request to "franchisor" under each franchisor comfort letter, if any, for each
such "franchisor" to issue a replacement comfort letter for the benefit of the
Trust Fund substantially similar to the comfort letter being replaced. If the
Mortgage Loan Documents do not require the related Mortgagor to pay any costs
and expenses relating to any modifications to the related letter of credit, then
the Seller shall pay such costs and expenses. If the Mortgage Loan Documents
require the related Mortgagor to pay any costs and expenses relating to any
modifications to the related letter of credit, such costs and expenses shall be
an expense of the Mortgagor, unless such Mortgagor fails to pay such costs and
expenses after the Seller has exercised all remedies available under the
applicable Mortgage Loan Documents to collect such costs and expenses, in which
case the Seller shall pay such costs and expenses; provided, however, that the
Seller shall have the right to pursue any course of action to recover such costs
and expenses from the related Mortgagor.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(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
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(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 Price.
(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.
(i) The Purchaser shall provide the Seller with all forms of
Disclosure Materials (including the final form of the Memorandum and the
preliminary and final forms of the Prospectus Supplement) promptly upon any such
document becoming available.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Xxxxx & XxXxxxxx on the
Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
set forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and
all of the representations and warranties
10
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 Price
WaterhouseCoopers LLP in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus and Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of November 7, 2003,
among the Seller, the Purchaser and the Underwriters.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall
consist of the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Agreement to Appointment of Master Servicer duly executed
by the Purchaser and the Seller;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
11
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement or any other
document or certificate delivered on or before the Closing Date in connection
with the transactions contemplated herein, was at the respective times of such
signing and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser and the Underwriters may rely, to the effect that (i) such
officer has carefully examined the Specified Portions of the Prospectus
Supplement and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (ii) such officer has carefully
examined the Specified Portions of the Memorandum and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Memorandum, as of the date thereof or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein related to the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading. The "Specified
Portions" of the Prospectus Supplement shall consist of Annex A-1 thereto,
entitled "Certain Characteristics of the Underlying 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 Underlying 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 And Description of the Ten Largest Mortgage Loans"
(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 A-1 or Annex A-2),
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 exclusive of any statements in such sections that purport
to summarize 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
Underlying Mortgage Loans And The Mortgaged Real Properties," "RISK FACTORS",
and "DESCRIPTION OF THE MORTGAGE POOL" (other than "DESCRIPTION OF THE MORTGAGE
POOL--Assignment of the Mortgage Loans"). The "Specified Portions" of the
Memorandum shall consist of the Specified Portions of the Prospectus Supplement
and the first and second full paragraphs on page "v" of the Memorandum;
12
(e) 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, the articles of incorporation and bylaws of the
Seller, and a certificate of good standing of the Seller issued by the State of
New York not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion
may be from in-house counsel, outside counsel or a combination thereof),
reasonably satisfactory to the Purchaser, its counsel and the Rating Agencies,
dated the Closing Date and addressed to the Purchaser, the Trustee, the
Underwriters and each of the Rating Agencies, together with such other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated,
both the Seller and the Purchaser shall pay their respective share of the
transaction expenses incurred in connection with the transactions contemplated
herein as set forth in the Closing Statement prepared by the Purchaser and
delivered to and approved by the Seller on or before the Closing Date and in the
Memorandum of Understanding between the Seller and Xxxxxxx Xxxxx Mortgage
Lending, Inc. with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Certificate Account, the Distribution
Account or, if established, the REO Account (each as defined in the Pooling and
Servicing Agreement) whether in the form of cash, instruments, securities or
other property; (iii) the assignment to the Trustee of the interest of the
Purchaser as contemplated by Section 1 hereof shall be deemed to be an
assignment of any security interest created hereunder; (iv) the possession by
the Trustee or any of its agents, including, without limitation, the Custodian,
of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other
13
than the Trustee) holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the secured party for the purpose of
perfecting such security interest under applicable law. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement. The Seller does hereby consent to the filing by the
Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
by facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
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
14
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
that obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party that commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser
agree to execute and deliver such instruments and take such further actions as
the other party may, from time to time, reasonably request in order to
effectuate the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations
of the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the Purchaser, except that any person into which
the Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns. This Agreement is enforceable by the
Underwriters and the other third party beneficiaries hereto in all respects to
the same extent as if they had been signatories hereof.
SECTION 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, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase and/or substitution
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate with PriceWaterhouseCoopers in making available all information and
taking all steps reasonably necessary to permit such accountants to deliver the
letters required by the Underwriting Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty
or other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with
15
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.
Notwithstanding anything herein to the contrary, it is hereby acknowledged that
certain groups of Mortgage Loans are, in the case of each such particular group
of Mortgage Loans (each, a "Crossed Group"), by their terms, cross-defaulted and
cross-collateralized. Each Crossed 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 referred to in this Section 20 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 Group only one original of
any document referred to in the definition of "Mortgage File" in the Pooling and
Servicing Agreement and covering all the Mortgage Loans in such Crossed Group,
the inclusion of the original of such document in the Mortgage File for any of
the Mortgage Loans constituting such Crossed Group shall be deemed an inclusion
of such original in the Mortgage File for each such Mortgage Loan.
16
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
JPMORGAN CHASE BANK
By: /s/ Xxxxxxx Xxx
---------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
Address for Notices:
JPMorgan Chase Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
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, 00xx Xxxxx
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 November 2003.
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 November 2003 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
November 2003, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. The 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 taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing
Sch-I-1
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), none of which materially interferes with the security
intended to be provided by such 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; (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), none of which materially interferes with the security intended to be
provided by such 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; (d) other matters to which like properties are commonly subject,
none of which materially interferes with the security intended to be provided by
such Mortgage, the current principal use of the related Mortgaged Property or
the current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; (e) the rights of tenants (as tenants
only) under leases (including subleases) pertaining to the related Mortgaged
Property, which rights do not materially interfere with the security intended to
be provided by such Mortgage, the current principal use of the related Mortgaged
Property or the current ability of the related Mortgaged Property to generate
income sufficient to service the related Mortgage Loan; (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 terms of which condominium declaration do
not materially interfere with the security intended to be provided by such
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 Borrower
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Borrower 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,
Sch-I-2
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 Borrower owns any interest
in any payments due under the related leases on which the Borrower is the
landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any 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 Borrower 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
Sch-I-3
Encumbrances. 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 benefit of the Trustee 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 Borrower 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 Borrower 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 Exhibit D 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 (which may include a
Phase II environmental 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
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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 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 Borrower
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
Borrower 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 Borrower, 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
Borrower or other responsible party is currently taking such actions, if any,
with respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority, (H) 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 (I) a responsible party provided a guaranty or
indemnity to the related Borrower 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 knowledge, 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 Borrower
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 Borrower under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
Documents for each Mortgage Loan require the related Borrower to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Exhibit E are
covered by environmental insurance policies and each such policy 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
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Mortgage Loan to which it relates and either does not provide for a deductible
or the deductible amount is held in escrow. Each Borrower represents and
warrants in the related Mortgage Loan Documents that except as set forth in
certain environmental reports and to its knowledge it has not used, caused or
permitted to exist and will not use, cause or permit to exist on the related
Mortgaged Property any hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders, directives or policies
governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials. The related Borrower
(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 Borrower 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 Borrower 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 Borrower 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
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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) (an "SFH Area"), and flood insurance was
available, a flood insurance policy meeting the requirements of the then current
guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
Each Mortgaged Property located in 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. 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 Borrower or a tenant of
such Borrower 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 Borrower 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 Borrower 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
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have not been paid or are not otherwise covered by an escrow of funds sufficient
to pay such charge. For purposes of this representation and warranty, real
property taxes and assessments and other charges shall not be considered
delinquent until the date on which interest and/or penalties would be payable
thereon.
16. Borrower Bankruptcy. No Borrower 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 Borrower 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 Borrower 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) the Borrower's interest in such Ground Lease is assignable to,
and is thereafter further assignable by, the Purchaser upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is required,
it has been obtained); provided that such Ground Lease has not been terminated
and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and such
Ground Lease further provides that no notice of termination given under such
Ground Lease is effective against the mortgagee under such Mortgage Loan unless
a copy has been delivered to such mortgagee in the manner described in such
Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any default under
such Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan, or (ii) has an original term which does not end prior to the 5th
anniversary of the Stated Maturity Date of such Mortgage Loan and has extension
options that are exercisable by the lender upon its taking possession of the
Borrower's leasehold interest and that, if exercised, would cause the term of
such Ground Lease to extend not less than twenty (20) years beyond the Stated
Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason, including
as a result of a rejection of such Ground Lease in a bankruptcy proceeding
involving the related Borrower, 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
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area where the related Mortgaged Property is located at the time of the
origination of such Mortgage Loan; and
(xi) such Ground Lease provides that 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(f)(2) that treats a defective obligation as a
qualified mortgage). 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
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 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 Borrower, 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.
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22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or governmental authority against or affecting the Borrower under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Borrower 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 Borrower to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. Except for Mortgage Loans secured by
residential cooperative properties, 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 Borrower 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 Borrower 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 Borrower 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
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Mortgage Loans, the sum of the amounts of the respective Mortgages recorded on
the related Mortgaged Properties with respect to such Mortgage Loans is at least
equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in connection with a defeasance of the related
Mortgage Loan; provided that the Mortgage Loans that are Crossed Loans, and the
other individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Borrower 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 Costs. If any Mortgage Loan permits defeasance,
then the related Mortgage Loan Documents provide that the related Borrower is
responsible for the payment of all reasonable costs and expenses associated with
defeasance incurred by the related mortgagee, including Rating Agency fees.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected,
or caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there
exists no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but not
yet 30 days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or
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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 Borrower, is
transferred or sold, other than by reason of: (i) if the related Mortgaged
Property is a residential cooperative property, transfers of stock of the
Borrower in connection with the assignment of a proprietary lease for a unit in
the related Mortgaged Property by a tenant-shareholder of the Borrower to other
persons who by virtue of such transfers become tenant-shareholders in the
Borrower; and (ii) in the case of other types of Mortgaged Properties, 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 Borrower,
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
Borrower, transfers among affiliated Borrowers with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Borrowers or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. Except in cases where the related
Mortgaged Property is a residential cooperative property, the Borrower 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
Sch-I-13
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 Borrower is required to enter into a lockbox arrangement on the ARD Loan
whereby all revenue from the related Mortgaged Property shall be deposited
directly into a designated account controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been
filed and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest) a valid security interest in the
personal property of the related Borrower 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 Borrower which are material to the conduct in the
ordinary course of the Borrower'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. Unless the related Mortgaged Property is a
residential cooperative property, the related Mortgage Loan Documents contain
provisions providing for recourse against the related Borrower, a principal of
such Borrower, or an entity controlled by a principal of such Borrower for
damages, liabilities, expenses or claims sustained in connection with the
Borrower's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an
Sch-I-14
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 Borrower, a principal
of such Borrower or an entity controlled by a principal of such Borrower, 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 or Leasehold Interests. The interest of the
related Borrower 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 Borrower, 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 Borrower, 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 Borrower 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;
Sch-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 Borrower 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.
Sch-I-16
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[ATTACHED]
Exh-A-1
MORTGAGE LOAN SCHEDULE
------------------------------------------------------------------------------------------------------------------------------------
LOAN # PROPERTY NAME MORTGAGE LOAN SELLER PROPERTY TYPE ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
4 Hometown America Portfolio JPMCB Manufactured Housing Various
4.01 Cimmaron Park Manufactured Housing 000 Xxxx Xxxx Xxxxxx Xxxxx
4.02 Cedar Knolls Manufactured Housing 00000 Xxxxxxx Xxxxxx
4.03 Leisurewoods-Rockland Manufactured Housing 00 Xxxxxxxxxxxx Xxxxx
0.00 Xxxxxxxxxxxx Manufactured Housing 00000 Xxxxxxxxx Xxxx
0.00 Xxxxxxxx Xxxxxx Manufactured Housing 0000 Xxxxx Xxxxx Xxxx 00
0 Xxxxxx Xxx XXXXX Manufactured Housing 00000 Xxxxx Xxxxxxx
12 Fiddler's Green Center II JPMCB Office 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx
------------------------------------------------------------------------------------------------------------------------------------
MONTHLY ORIGINAL
LOAN # CITY COUNTY STATE ZIP CODE CUTOFF BALANCE ORIGINAL BALANCE DEBT SERVICE MORTGAGE RATE (%)
------------------------------------------------------------------------------------------------------------------------------------
4 Various Various Various Various 76,293,172.00 76,293,172.00 439,648.41 5.3000
4.01 Lake Xxxx Xxxxxxxxxx XX 00000 22,695,801.00 22,695,801.00
4.02 Xxxxx Xxxxxx Xxxxxx XX 00000 17,200,000.00 17,200,000.00
4.03 Rockland Xxxxxxxx XX 00000 11,475,204.00 11,475,204.00
4.04 Chesterfield Xxxxxx XX 00000 13,200,000.00 13,200,000.00
4.05 Xxxxxxxx Xxxx XX 00000 11,722,167.00 11,722,167.00
0 Xxxx Xxxxx Xx. Xxxxx XX 00000 41,248,141.00 41,248,141.00 242,422.66 5.4880
00 Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 21,481,774.12 21,500,000.00 127,717.02 5.9140
------------------------------------------------------------------------------------------------------------------------------------
MASTER SERVICING NET MORTGAGE REM. MATURITY ARD AMORT REM. GROUND
LOAN # FEE RATE RATE (%) ACCRUAL TYPE TERM TERM DATE DATE TERM AMORT LEASE ARD
------------------------------------------------------------------------------------------------------------------------------------
4 0.0200 5.2581 Actual/360 84 84 11/1/10 11/1/10 330 330 No No
4.01
4.02
4.03
4.04
4.05
5 0.0200 5.4461 Actual/360 120 120 11/1/13 11/1/13 330 330 No No
12 0.0200 5.8221 Actual/360 84 83 10/1/10 10/1/10 360 359 No No
------------------------------------------------------------------------------------------------------------------------------------
ARD STEP ENVIRONMENTAL CROSS- CROSS- DEFEASANCE LETTER OF LOCKBOX HOLDBACK
LOAN # UP (%) POLICY DEFAULTED COLLATERALIZED ALLOWED CREDIT IN PLACE AMT
------------------------------------------------------------------------------------------------------------------------------------
4 Yes No No Yes No Yes 0
4.01
4.02
4.03
4.04
4.05
5 Yes No No Yes No Yes 0.00
12 No No No Yes No Yes 0.00
------------------------------------------------------------------------------------------------------------------------------------
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT OTHER
LOAN # ENG. RESERVE ENV. RESERVE TI/LC RESERVE RE TAX RESERVE INS. RESERVE OTHER RESERVE RESERVE DESCRIPTION
------------------------------------------------------------------------------------------------------------------------------------
4 3,688 0 0 257,315 0 0
4.01
4.02
4.03
4.04
4.05
5 0 0 116,290 0 0
12 0 0 290,294 55,917 0
------------------------------------------------------------------------------------------------------------------------------------
MONTHLY CAPEX MONTHLY TI/LC MONTHLY RE MONTHLY INS. TOTAL GRACE INTEREST
LOAN # RESERVE RESERVE TAX RESERVE RESERVE SF/UNITS PERIOD RESERVE LOAN LOAN GROUP
------------------------------------------------------------------------------------------------------------------------------------
4 8,682 0 51,692 0 2,206 7 Yes 1
4.01 505 1
4.02 458 1
4.03 394 1
4.04 345 1
4.05 504 1
5 1,613 0 19,382 0 1,384 7 Yes 2
12 1,500 13,500 48,382 5,083 206,599 8 Yes 1
Exh-A-2
EXHIBIT B
Mortgage Loan Purchase Agreement, dated as of November 1, 2003.
CERTIFICATES:
------------
Xxxxxxx Xxxxx Mortgage Trust 2003-KEY1
Commercial Mortgage Pass-Through Certificates, Series 2003-KEY1
--------------------------------------------------------------------------------
Class Designation Initial Aggregate Aggregate Certificate Purchase Price
Certificate Principal Principal Balance or
Balance of Class Percentage Interest of
Class to be Retained by
Seller
--------------------------------------------------------------------------------
None
--------------------------------------------------------------------------------
Exh-B-1
EXHIBIT C
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
NONE
Xxx-X-0
XXXXXXX X
(XXXXXXXXXXXXXX 00)
XXXX
Xxx-X-0
EXHIBIT E
MORTGAGE LOANS COVERED BY ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATION 12)
Loan Xx. 0/Xxxxxxxx Xxxxxxx
Xxxx Xx. 0/Xxxxxx Xxx
Xxx-X-0
