MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 10, 2001
(the "Agreement"), is entered into between First Union National Bank (the
"Seller") and First Union Commercial Mortgage Securities, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cut-Off Date, among the Purchaser as depositor, First Union National Bank as
master servicer (in such capacity, the "Master Servicer"), Lennar Partners,
Inc., as special servicer (in such capacity, the "Special Servicer"), and Xxxxx
Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). 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 $653,641,225, including the Rite Aid
Subordinate Component (the "First Union 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 First Union 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 $1,002,714,150, including the Rite
Aid Subordinate Balance (subject to a variance of plus or minus 5%). The
purchase and sale of the Mortgage Loans shall take place on June 11, 2001 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) the principal amounts or percentage interests of the
Certificates set forth on Exhibit B attached hereto (collectively, the "Retained
Certificates"), and (B) (i) 102.7% of the First Union Mortgage Loan Balance as
of the Cut-Off Date, plus (ii) $1,370,174, which amount represents the amount of
interest accrued on the First Union Mortgage Loan Balance at the related Net
Mortgage Rate for the period from and including the Cut-Off Date up to but not
including the Closing Date.
The Purchase 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, on behalf
of the Purchaser, delivered to the Trustee, 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 Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2001-C2 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, 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 Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C2, or
in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan, in favor of Xxxxx Fargo Bank Minnesota, N.A., as
trustee for the registered holders of First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C2, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed by
an authorized representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent
the Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statements in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2
or UCC-3 assignment, as appropriate, in form suitable for filing, as
appropriate, in favor of Xxxxx Fargo Bank Minnesota, N.A., as trustee
for the registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C2, or in blank;
(ix) an original or copy of any Ground Lease, any Credit Lease
and any Lease Enhancement Policy, RVI Policy, Guaranty or ground lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of
the Mortgagor;
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan; and
(xii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related Co-Lender
Agreement; provided that a copy of each mortgage note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
(d) The Seller shall take all actions necessary or desirable 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 national banking association organized and
validly existing and in good standing under the banking laws of the
United States and possesses all requisite authority, power, licenses,
permits and franchises to carry on its business as currently conducted
by it and to execute, deliver and comply with its obligations under the
terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights in general, as they
may be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law), and
by public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's articles of association or
bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a material default (or
an event which, with notice or lapse of time, or both, would constitute
a material default) under, or result in the breach of, any material
contract, agreement or other instrument to which the Seller is a party
or by which the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Seller or its properties or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement or that requires
the consent of any third person to the execution of this Agreement or
the performance by the Seller of its obligations under this Agreement
(except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the transfer
of the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans
to the Purchaser in exchange for consideration consisting of a cash
amount equal to the Purchase Price. The consideration received by the
Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute reasonably equivalent value at least equal to the fair market
value of 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, Schedule II or Schedule III hereto for the benefit of
the Purchaser and the Trustee for the benefit of the Certificateholders as of
the Closing Date, with respect to (and solely with respect to) each Mortgage
Loan.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement relating to a Mortgage Loan, then the Seller shall not later than 90
days from receipt of such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from
any party to the Pooling and Servicing Agreement discovering such Document
Defect or Breach provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the related Mortgage Loan or the interest of the Certificateholders
therein, cure such Document Defect or Breach, as the case may be, in all
material respects, which shall include payment of losses and any Additional
Trust Fund Expenses associated therewith or, if such Document Defect or Breach
(other than omissions solely due to a document not having been returned by the
related recording office) cannot be cured within such 90-day period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period or (ii) except with respect to the Rite Aid
Mortgage Loan, substitute a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan not later than the end of such 90-day period (and in no event
later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Certificate Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that unless the breach would
cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document
Defect or Breach is capable of being cured but not within such 90-day period and
the Seller has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, such Seller shall have an
additional 90 days to complete such cure (or, failing such cure, to repurchase
or substitute the related Mortgage Loan); and provided, further, that with
respect to such additional 90-day period the Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Document Defect or Breach will be
cured within the additional 90-day period; and provided; further, that no
Document Defect (other than with respect to a Mortgage Note, Mortgage, title
insurance policy, Ground Lease or any letter of credit) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations. A
Document Defect or Breach as to a Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans (each a "Crossed Loan")
that materially and adversely affects the value of such other Mortgage Loans,
and is not cured as provided for above, shall require the repurchase or
substitution of all such cross-collateralized and cross-defaulted Mortgage Loans
which are materially and adversely affected by such Document Defect or Breach;
provided, that if any Crossed Loan is not so repurchased or substituted, then
such Crossed Loan shall be released from its cross-collateralization and
cross-default provision so long as such Crossed Loan is held in the Trust Fund;
provided, further, that the borrower under such Mortgage Loan is an intended
third party beneficiary of this provision, which shall not be modified without
such borrower's consent. 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, the Seller shall provide the
Officer's Certificate to the Trustee described above as to the reasons such
Document Defect or Breach remains uncured and as to the actions being taken to
pursue cure; provided, however, that, without limiting the effect of the
foregoing provisions of this Section 3(c), if such Document Defect or Breach
shall materially and adversely affect the value of such Mortgage Loan or the
interests of the holders of the Certificates therein (subject to the last
proviso in the immediately preceding sentence), the Seller shall in all cases on
or prior to the second anniversary of the Closing Date either cause such
Document Defect or Breach to be cured or repurchase or substitute for the
affected Mortgage Loan. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance as described in clause
12 of Schedule I hereof in lieu of the delivery of the actual policy of lender's
title insurance shall not be considered a Document Defect or Breach with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price 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, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, and (ii) the Trustee,
the Custodian, the Master Servicer and the Special Servicer shall each tender to
the Seller, upon delivery to each of them of a receipt executed by the Seller,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants 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 North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's Articles of Incorporation or Bylaws, (B) any term or provision of
any material agreement, contract, instrument or indenture, to which the
Purchaser is a party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx,
Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the 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;
and
(f) A letter from the independent accounting firm of KPMG LLP in
form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part that are required under
this Agreement to be performed or satisfied at or prior to the Closing Date;
(c) An Officer's Certificate from an officer of the Seller, 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, 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 Prospectus and
nothing has come to his attention that would lead him to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the Closing
Date, included or includes any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omits to state therein a material fact
necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Memorandum and nothing has come to his
attention that would lead him to believe that the Memorandum, as of the date
thereof or as of the Closing Date, included or includes any untrue statement of
a material fact relating to the Mortgage Loans or omitted or omits 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;
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and a certificate of good standing of the Seller issued by the State of
Delaware not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller, reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement,
the Memorandum, the Diskette or, insofar as they are required to be filed as
part of the Registration Statement pursuant to the No-Action Letters, any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing or (B) any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates
(the items in (A) and (B) being defined as the "Disclosure Material"), or (ii)
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; but only if and to the extent that (I) any such untrue
statement or alleged untrue statement or omission or alleged omission arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact is with
respect to, or arises out of or is based upon an untrue statement or omission of
a material fact with respect to, the information regarding the Mortgage Loans,
the related Mortgagors, the related Mortgaged Properties and/or the Seller set
forth (Y) in the Prospectus Supplement and the Memorandum under the headings:
"SUMMARY OF PROSPECTUS SUPPLEMENT-THE PARTIES-The Mortgage Loan Sellers" and
"-The Mortgage Loan Originators", "SUMMARY OF PROSPECTUS SUPPLEMENT-THE MORTGAGE
LOANS", "RISK FACTORS-Certain Risk Factors Associated With the Mortgage Loans"
and "DESCRIPTION OF THE MORTGAGE POOL" and (Z) on Annex A to the Prospectus
Supplement and, to the extent consistent therewith, on a Diskette, or (III) any
such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3; provided
that the indemnification provided by this Section 7 shall not apply to the
extent that such untrue statement or omission of a material fact was made as a
result of an error in the manipulation of, or in any calculations based upon, or
in any aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement to the extent such information was not
materially incorrect in the Data File or such Annex A, as applicable, including
without limitation the aggregation of such information with comparable
information relating to the Other Mortgage Loans. The information described in
clauses (I) through (III) above is collectively referred to as the "Seller
Information". The Seller shall reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-53266 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated May 15,
2001, as supplemented by the prospectus supplement dated May 31, 2001 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated May 31,
2001 relating to the Non-Registered Certificates, including all exhibits
thereto; "Registered Certificates" shall mean the Class A-1, Class A-2, Class B,
Class C, Class D and Class E Certificates; "Non-Registered Certificates" shall
mean the Certificates other than the Registered Certificates; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact disc
attached to each of the Prospectus and the Memorandum; and "Data File" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated May 15, 2001 and rendered by
KPMG LLP (a "hard copy" of which Data File was initialed on behalf of the Seller
and the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who controls
the Seller within the meaning of either the 1933 Act or the 1934 Act, against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (in preliminary or
final form), or in an amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made,
except to the extent that such untrue statement, alleged untrue statement,
omission or alleged omission is based upon the Seller Information, and the
Purchaser shall reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity agreement will be in addition to any liability which the
Purchaser may otherwise have.
(d) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have otherwise than under this
Section 7. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(e) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(e) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(e) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(g) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(h) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the First Union Mortgage Loan
Balance represents of the Cut-Off Date Pool Balance): (i) the costs and expenses
of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the expense of recording any assignment of Mortgage or assignment
of Assignment of Leases as contemplated by Section 2 hereof; (vii) the fees and
disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller with respect to numerical information in respect of the
Mortgage Loans and the Certificates included in the Prospectus, the Memorandum
and any related Computational Materials or ABS Term Sheets, including in respect
of the cost of obtaining any "comfort letters" with respect to such items;
(viii) the reasonable out-of-pocket costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or "Blue
Sky" laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any "Blue
Sky" survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (ix) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (x) the reasonable fees and
disbursements of counsel to the Underwriters. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Articles 8 and 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, 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 9-305 of the Uniform Commercial Code of the
applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 17. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all respects
to the same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge," such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
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
FIRST UNION NATIONAL BANK
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
PURCHASER
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as
of the Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan
free and clear of any and all liens, pledges, charges or security
interests of any nature encumbering such Mortgage Loan. Upon
consummation of the transactions contemplated by the Mortgage Loan
Purchase Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to
such Mortgage Loan free and clear of any pledge, lien or security
interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed in connection with such Mortgage Loan are
legal, valid and binding obligations of the related Mortgagor (subject
to any non-recourse provisions therein and any state anti-deficiency or
market value limit deficiency legislation), enforceable in accordance
with their terms, except (i) that certain provisions contained in such
Mortgage Loan documents are or may be unenforceable in whole or in part
under applicable state or federal laws, but neither the application of
any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
rights and benefits afforded thereby and (ii) as such enforcement may be
limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign,
transfer and convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, to the actual
knowledge of the Seller, there is no valid offset, defense, counterclaim
or right to rescission with respect to such Mortgage Note, Mortgage(s)
or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default
interest, late fees, additional interest, prepayment premiums or yield
maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and
binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and
Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth in
paragraph (5) above and the following title exceptions (each such title
exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground rents,
water charges, sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or
with the Mortgagor's ability to pay its obligations under the Mortgage
Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (c) the exceptions (general and specific) set
forth in such policy or appearing of record, none of which, individually
or in the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) other matters to which
like properties are commonly subject, none of which, individually or in
the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (e) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such leases)
and (f) if such Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such other Mortgage Loan,
none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to cross-collateralized and cross-defaulted Mortgage
Loans, there are no mortgage loans that are senior or pari passu with
respect to the related Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid first
priority security interest in all items of personal property reasonably
necessary to operate the Mortgaged Property owned by a Mortgagor and
located on the related Mortgaged Property, (other than any personal
property subject to a purchase money security interest or a sale and
leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property) to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on
such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivorship, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or
control of such items or actions other than the filing of UCC Financing
Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments which would be a lien
on the Mortgaged Property and that prior to the Cut-Off Date have become
delinquent in respect of each related Mortgaged Property have been paid,
or an escrow of funds in an amount sufficient to cover such payments has
been established. For purposes of this representation and warranty, real
estate taxes and governmental assessments and installments thereof shall
not be considered delinquent until the earlier of (a) the date on which
interest and/or penalties would first be payable thereon and (b) the
date on which enforcement action is entitled to be taken by the related
taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the
Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely
the value of such Mortgaged Property as security for the Mortgage Loan
and to the Seller's actual knowledge as of the Cut-Off Date there was no
proceeding pending for the total or partial condemnation of such
Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of
principal (as set forth on the Mortgage Loan Schedule) is insured by an
ALTA lender's title insurance policy (or a binding commitment therefor),
or its equivalent as adopted in the applicable jurisdiction, insuring
the Seller, its successors and assigns, subject only to the Title
Exceptions; the Seller or its successors or assigns is the named insured
of such policy; such policy is assignable without consent of the insurer
and will inure to the benefit of the Trustee as mortgagee of record; is
in full force and effect upon the consummation of the transactions
contemplated by this Agreement; all premiums thereon have been paid; no
claims have been made under such policy and the Seller has not done
anything, by act or omission, and the Seller has no actual knowledge of
any matter, which would impair or diminish the coverage of such policy.
The insurer issuing such policy is either (x) a nationally-recognized
title insurance company or (y) qualified to do business in the
jurisdiction in which the related Mortgaged Property is located to the
extent required; such policy contains no material exclusions for, or
affirmatively insures (except for any Mortgaged Property located in a
jurisdiction where such insurance is not available) (a) access to public
road or (b) against any loss due to encroachments of any material
portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required under
each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to
the related Mortgaged Property in the jurisdiction in which such
Mortgaged Property is located, and with respect to a fire and extended
perils insurance policy, is in an amount (subject to a customary
deductible) equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the initial
principal balance of the Mortgage Loan, and in any event, the amount
necessary to prevent operation of any co-insurance provisions; and,
except if such Mortgaged Property is operated as a mobile home park, is
also covered by business interruption or rental loss insurance, in an
amount at least equal to 12 months of operations of the related
Mortgaged Property (or in the case of a Mortgaged Property without any
elevator, 6 months), all of which is was in full force and effect with
respect to each related Mortgaged Property; and, as of the Cut-Off Date,
to the actual knowledge of the Seller, all insurance coverage required
under each Mortgage, which insurance covers such risks and is in such
amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located, is in full
force and effect with respect to each related Mortgaged Property; all
premiums due and payable through the Closing Date have been paid; and no
notice of termination or cancellation with respect to any such insurance
policy has been received by the Seller; and except for certain amounts
not greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar
Mortgage Loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss, will be applied either
(i) to the repair or restoration of all or part of the related Mortgaged
Property or (ii) the reduction of the outstanding principal balance of
the Mortgage Loan, subject in either case to requirements with respect
to leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent institutional lenders for similar
loans. The Mortgaged Property is also covered by comprehensive general
liability insurance against claims for personal and bodily injury, death
or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders.
The insurance policies contain a standard mortgage clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee
to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so.
14. (A) Other than payments due but not yet 30 days or more delinquent, to
the Seller's actual knowledge, based upon due diligence customarily
performed with the servicing of comparable mortgage loans by prudent
institutional lenders, there is no material default, breach, violation
or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and to the Seller's actual knowledge no event
(other than payments due but not yet delinquent) which, with the passage
of time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of
acceleration, provided, however, that this representation and warranty
does not address or otherwise cover any default, breach, violation or
event of acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller in
any of clauses (10), (15) and (19) of this Schedule I or in any clause
of Schedule II or III, and (B) the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage
or Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the
terms of the related Mortgage or the related Mortgage Note, and other
documents in the related Mortgage File no person or party other than the
holder of such Mortgage Note may declare any event of default or
accelerate the related indebtedness under either of such Mortgage or
Mortgage Note.
15. As of the Cut-Off Date, the Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more
past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation
except as expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage, or any substantially similar successor
provision). Accordingly, such Mortgage Loan is directly secured by a
Mortgage on a commercial property or a multifamily residential property,
and either (1) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect the portion of such commercial
or multifamily residential property that consists of an interest in real
property (within the meaning of Treasury Regulations Sections 1.856-3(c)
and 1.856-3(d)) and such interest in real property was the only security
for such Mortgage Loan as of the Testing Date (as defined below), or (2)
the fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount of
the Mortgage Loan (a) as of the Testing Date, or (b) as of the Closing
Date. For purposes of the previous sentence, (1) the fair market value
of the referenced interest in real property shall first be reduced by
(a) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (b) a proportionate amount of any lien
on such interest in real property that is on a parity with the Mortgage
Loan, and (2) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (a) such Mortgage Loan
was modified after the date of its origination in a manner that would
cause a "significant modification" of such Mortgage Loan within the
meaning of Treasury Regulations Section 1.1001-3(b), and (b) such
"significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan
was reasonably foreseeable. However, if the referenced Mortgage Loan has
been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest
such "significant modification" occurred. The Mortgage Loan documents
with respect to each Defeasance Loan do not allow such Defeasance Loan
to be defeased prior to two years after the Startup Date.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no actual knowledge and has
received no notice of any material and adverse environmental condition
or circumstance affecting such Mortgaged Property that was not disclosed
in such report(s). If any such environmental report identified any
Recognized Environmental Condition (REC), as that term is defined in the
Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM),
with respect to the related Mortgaged Property and the same have not
been subsequently addressed in all material respects, then either (i) an
escrow greater than 100% of the amount necessary to address the REC is
held by the Seller for purposes of effecting same, (and the borrower has
covenanted in the Mortgage Loan documents to perform such work), or (ii)
the related borrower or other responsible party not related to the
borrower and having financial resources reasonably estimated to be
adequate to address the REC is required to take such actions, if any,
with respect to such circumstances or conditions as have been required
by the applicable governmental regulatory authority or any environmental
law or regulation, or (iii) the borrower has provided an environmental
insurance policy. All environmental assessments or updates that were in
the possession of the Seller and that relate to a Mortgaged Property
insured by an environmental insurance policy have been delivered to or
disclosed to the environmental insurance carrier issuing such policy
prior to the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions such as to
render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the
security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged Property
is the subject of, any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the AB
Mortgage Loans) and contains no equity participation by the lender or
shared appreciation feature and does not provide for any contingent or
additional interest in the form of participation in the cash flow of the
related Mortgaged Property or, other than the ARD Loans, provide for
negative amortization. The Seller holds no preferred equity interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions lending
on the security of property comparable to the related Mortgaged
Property, each related Mortgage or loan agreement contains provisions
for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without complying with the requirements of the
Mortgage or loan agreement, the related Mortgaged Property, or any
controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers
and transfers of less than a controlling interest in a mortgagor, or a
substitution or release of collateral within the parameters of paragraph
(26) below), or encumbered in connection with subordinate financing by a
lien or security interest against the related Mortgaged Property, other
than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to
the related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage, and, except with respect to Mortgage Loans (a) which permit
defeasance by means of substituting for the Mortgaged Property (or, in
the case of a Mortgage Loan secured by multiple Mortgaged Properties,
one or more of such Mortgaged Properties) U.S. Treasury Obligations
sufficient to pay the Mortgage Loans in accordance with their terms, (b)
where a release of the portion of the Mortgaged Property was
contemplated at origination and such portion was not considered material
for purposes of underwriting the Mortgage Loan, (c) where release is
conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents adequate
consideration for such Mortgaged Property, or (d) which permit the
related Mortgagor to substitute a replacement property in compliance
with REMIC Provisions, the terms of the related Mortgage do not provide
for release of any portion of the Mortgaged Property from the lien of
the Mortgage except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based on due diligence customary in
the industry, as of the date of origination of such Mortgage Loan and as
of the Cut-Off Date, there are no violations of any applicable zoning
ordinances, building codes and land laws applicable to the Mortgaged
Property or the use and occupancy thereof which (i) are not insured by
an ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable jurisdiction,
or a law and ordinance insurance policy or (ii) would have a material
adverse effect on the value, operation or net operating income of the
Mortgaged Property.
28. None of the material improvements which were included for the purposes
of determining the appraised value of the related Mortgaged Property at
the time of the origination of the Mortgage Loan lies outside of the
boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the related Mortgagor's
use and operation of such Mortgaged Property (unless affirmatively
covered by the title insurance) and no improvements on adjoining
properties encroached upon such Mortgaged Property to any material and
adverse extent (unless affirmatively covered by title insurance).
29. With respect to at least 95% of the Mortgage Loans (by balance) having a
Cut-Off Date Balance in excess of 1% of the Initial Pool Balance, the
related Mortgagor has covenanted in its organizational documents and/or
the Mortgage Loan documents to own no significant asset other than the
related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged
Property, and to hold itself out as being a legal entity, separate and
apart from any other person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and,
to the Seller's actual knowledge, no funds have been received from any
person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. Except as set forth below, as of the date of origination and, to the
Seller's actual knowledge, as of the Cut-Off Date, there was no pending
action, suit or proceeding, or governmental investigation of which it
has received notice, against the Mortgagor or the related Mortgaged
Property an adverse outcome of which could reasonably be expected to
materially and adversely affect such Mortgagor's performance under the
related Mortgage Loan documents or the security intended to be provided
by the Mortgage Loan documents or the current use of the Mortgaged
Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest contracted for complied as of the
date of origination with, or is exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that secures
a Mortgage Loan that is not in the Trust Fund and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other
Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage Loan
are in the possession, or under the control, of the Seller or its agent
and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property, and, as of the
Cut-Off Date, the Seller has no actual knowledge that the related
Mortgagor, the related lessee, franchisor or operator was not in
possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage
Loan have been in all respects legal and have met customary industry
standards.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related
Mortgaged Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other
intentional misrepresentation. Furthermore, the Mortgage Loan documents
for each Mortgage Loan provide that the related Mortgagor shall be
liable to the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the
related Mortgagor after the occurrence of an event of default, insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage
and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real
property.
42. With respect to such Mortgage Loan, any prepayment premium constitutes a
"customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (1) no
earlier than two years after the Closing Date, (2) only with substitute
collateral constituting "government securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient
to make all scheduled payments under the Mortgage Note and (3) only to
facilitate the disposition of the Mortgaged Property and not as a part
of an arrangement to collateralize a REMIC offering with obligations
that are not real estate mortgages. In addition, if such Mortgage
contains such a defeasance provision, it provides (or otherwise contains
provisions pursuant to which the holder can require) that the loan be
assumed by a single-purpose entity designated by the holder of the
Mortgage Loan and that an opinion be provided to the effect that such
holder has a first priority perfected security interest in the
defeasance collateral. The related Mortgage Loan documents enable the
lender to charge the expenses associated with permitting a defeasance to
the Mortgagor (including rating agencies' fees, accounting fees and
attorneys' fees), and must provide for (a) an accountant's certification
as to the adequacy of the defeasance collateral to make payments under
the related Mortgage Loan for the remainder of its term, (b) an Opinion
of Counsel that the defeasance complies with all applicable REMIC
Provisions, and (c) a letter from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or qualification
of the ratings assigned to the Certificates. Notwithstanding the
foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with
the REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of
the Mortgage Loan, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged
Property is located at all times when it originated and held the
Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except as set forth below or with respect to the Companion Loan of any
AB Mortgage Loan, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged
Property to be encumbered subsequent to the Closing Date without the
prior written consent of the holder thereof, by any lien securing the
payment of money junior to or of equal priority with, or superior to,
the lien of the related Mortgage (other than Title Exceptions, taxes,
assessments and contested mechanics and materialmens liens that become
payable after the after the Cut-Off Date of the related Mortgage Loan).
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTY NO. 31
(SPE REQUIREMENTS)
Loan Xx. Xxxxxxxxx
00 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx These loans do not meet the
00 Xxxxxxxx Xxxxxxx Xxxxxx single-purpose entity
30 Deep River Shopping Center requirements.
REPRESENTATION AND WARRANTY NO. 46
(JUNIOR LIENS)
Loan No. Exception
00 Xxxxxxx Xxxxxxx The Mortgaged Property is
encumbered by existing
subordinate debt subject to the
terms of a Subordination and
Standstill Agreement in favor of
the lender.
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest (except
with respect to any Mortgage Loan also secured by a fee interest in the related
Mortgaged Property), the Seller represents and warrants the following with
respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of
the lessor thereunder is required, it has been obtained prior to the
Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and that any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if an event of
default occurs under the Ground Lease and notice is provided to the
mortgagee and such default is curable by the mortgagee as provided in
the Ground Lease, but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such Ground
Lease is in full force and effect and other than payments due but not
yet 30 days or more delinquent, (1) there is no material default, and
(2) there is no event which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a material
default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further
provides that no notice given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the
ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however,
to only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity to cure any curable
default under such Ground Lease before the lessor thereunder may
terminate such Ground Lease.
8. Except as set forth below, such Ground Lease has an original term
(together with any extension options, whether or not currently
exercised, set forth therein all of which can be exercised by the
mortgagee if the mortgagee acquires the lessee's rights under the Ground
Lease) that extends not less than 20 years beyond the Stated Maturity
Date.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or taking)
will be applied either to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
repair or restoration progresses, or to the payment or defeasance of the
outstanding principal balance of the Mortgage Loan, together with any
accrued interest (except in cases where a different allocation would not
be viewed as commercially unreasonable by any institutional investor,
taking into account the relative duration of the ground lease and the
related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such Mortgage
Loan).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason, including
the rejection of the Ground Lease in bankruptcy.
SCHEDULE III
CREDIT LEASE LOAN REPRESENTATIONS AND WARRANTIES
1. The lease payments due under the related Credit Lease, together
with any escrow payments held by the Seller or its designee, are equal to or
greater than the payments due with respect to the related Mortgage Loan.
2. The Mortgagor does not have any material monetary obligations
under the related Credit Lease, and every material monetary obligation
associated with managing, owning, developing and operating the leased property,
including, but not limited to, the costs associated with utilities, taxes,
insurance, maintenance and repairs is an obligation of the related Tenant.
3. The Mortgagor does not have any nonmonetary obligations under the
related Credit Lease, except for the delivery of possession of the leased
property.
4. The related Tenant cannot terminate such Credit Lease for any
reason prior to the payment in full of: (a) the principal balance of the related
Mortgage Loan; (b) all accrued and unpaid interest on such Mortgage Loan; and
(c) any other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment date, except for a material
default by the related Mortgagor under the Credit Lease or due to a casualty or
condemnation event, in which case, a Lease Enhancement Policy insures against
such risk.
5. In the event the related Tenant assigns or sublets the related
leased property, such Tenant (and if applicable, the related guarantor) remains
obligated under the related Credit Lease.
6. Based upon the customary due diligence performed by the
originator at origination, each property related to a Credit Lease Loan is one
or more separate tax lots, except properties concerning which adequate funds
have been escrowed to cover taxes due on the entire tax lot or lots.
7. The related Tenant has agreed to indemnify the Mortgagor from any
claims of any nature (a) to which the Mortgagor is subject because of such
Mortgagor's estate in the leased property (except to the extent caused by the
act or omission of the Mortgagor or its agents or employees), or (b) arising
from (i) injury to or death of any person or damage to or loss of property on
the leased property or connected with the use, condition or occupancy of the
leased property, (ii) Tenant's violation of the related Credit Lease, or (iii)
any act or omission of the Tenant.
8. The related Tenant has agreed to indemnify the Mortgagor from any
claims of any nature arising as a result of any hazardous material affecting the
leased property and due to such Tenant's use of the leased property.
9. In connection with Credit Lease Loans with respect to which a
Guaranty exists, the related guarantor guarantees the payment due under the
related Credit Lease and such Guaranty, on its face, contains no conditions to
such payment.
10. Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the loan, and
there is no "balloon" payment due under such Credit Lease Loan at maturity.
11. No Tenant under a Credit Lease Loan may exercise any termination
right or offset or set-off right which shall be binding upon the related
mortgagee without providing prior written notice of same to such mortgagee.
12. Each Tenant under each Credit Lease Loan is required to make all
rental payments due under the applicable Credit Lease directly to a lock-box
being maintained by or on behalf of the mortgagee.
13. No material modification or amendment of any Credit Lease Loan
shall be binding upon the related mortgagee without such mortgagee's prior
written notice consent to such material modification or amendment, which consent
may not be unreasonably unwithheld.
14. Each property related to a Credit Lease Loan has or will have a
permanent certificate of occupancy, and the related Tenant thereunder has
commenced the payment of rent due under the respective Credit Tenant Lease in
accordance with its terms.
15. Each Tenant has delivered a subordination, non-disturbance and
attornment agreement pursuant to which the respective Tenant has agreed in the
event the related mortgagee succeeds to the interest of the Mortgagor under the
Credit Lease by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, the Tenant will attorn to and recognize the mortgagee as its
landlord under the Credit Lease for the remainder of the term of the Credit
Lease.
16. To the Seller's knowledge, the property related to each Credit
Lease Loan is not subject to any other lease other than the related Credit Lease
or any ground lease pursuant to which the related Mortgagor has acquired its
interest in the respective property, no person has any possessory interest in,
or right to occupy, the subject property except under and pursuant to any such
Credit Lease or ground lease and the related Tenant under each Credit Lease is
in occupancy of the demised premises.
EXHIBIT A
MORTGAGE LOAN SCHEDULE
MORTGAGE
LOAN
NUMBER PROPERTY NAME STREET ADDRESS CITY
-------------------------------------------------------------------------------------------------------------------------
1 0000 Xxxxxxxxxxx Xxx., X.X. 0000 Xxxxxxxxxxx Xxx., X.X. Xxxxxxxxxx
2 Innkeepers Portfolio Various Various
2.1 Marriott Residence Inn Dallas-Addison 14975 Quorum Dr. Dallas
2.2 Marriott Residence Inn -Arlington 0000 Xxxxx Xxxxxx Xxxxx Xx. Xxxxxxxxx
2.3 Marriott Residence Inn Atlanta - 000 Xxxxxxxxx Xx. XX Xxxxxxx
Xxxxxxxx
2.4 Marriott Residence Inn 000 Xxxxxxx Xxx. Xxxxxxxxx Xxxxxxx
Altamonte
2.5 Marriott Residence Inn - San Mateo 0000 Xxxxxxxx Xxx San Mateo
2.6 Marriott Xxxxxxxxx Xxx - Xxxxxxx 0000 Xxxxxxxxxx Xxx. Xxxxxxx
4 Villa La Jolla Apartments 8540 Xxx Xxxxxxxx Xxxxx Xx Xxxxx
0 Xxxxxx Xxxxx Apartments 0000 Xxx Xxxxxxxxxx Xxxx Tallahassee
10 Qwest Communications Building 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxx
00 Xx Xxxxx Xxxxxxx Apartments 00000 Xxxxxx Xxxxxxxx Xxxx Xxx Xxxxx
12 0 Xxxx 00xx Xxxxxx 0 Xxxx 00xx Xxxxxx Xxx Xxxx
14 Monaco Park Apartments 0000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxxx
16 Spectrum Pointe 0-00 Xxxxxxxx Xxxxxx Xxxxx and 20 & 80 Empire Lake Forest
17 Center Point Shopping Center 0000-0000 Xxxx Xxxxx Xxxxx Asheboro
19 Peppertree Apartments 0000 Xxxxxxxxx Xxx Riverside
20 Brighton Arms Apartments 301, 311, 000 X. Xxxxxxxx Xxxxxx Neptune City
00 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxxxx Drive Irving
24 Remington Hills Apartments 0000 Xxxxx Xxxxxx Xxxxx Xxxxx Irving
25 Market at Xxxxx US Route 1 and Xxxxx Blvd. Woodbridge
26 Sterling University Xxxx 000 Xxxx Xxxxx Xxxx Xxxxxxxxxxx
27 Eight Neshaminy Interplex Old Lincoln Highway & Northgate Road Bensalem Township
00 Xxxxxxxx Xxxxxxx Xxxxxx 1101-1151 Westwood Boulevard Los Angeles
30 Deep River Shopping Center 985-1021 High Point Street Randleman
32 Timberglen Apartments 0000 Xxxxxxxxxx Xxxx Xxxxxx
00 Xxxxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx Xxxxxxxxx Xxxxxxxxxx
34 Valley Run Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx
36 Tree Haven Apartments Ravine & 00 Xxxxxxxx Xxxx Xxxxxxx
38 Xxxxxxx Business Park 2842-2912 Colorado Ave. Santa Xxxxxx
40 Xxxxxxxx- Xxxxxx MOB's 1403-1475 Xxxxxxxx-Xxxxxx Drive Richmond
41 Wilshire La Jolla 0000 Xxxxxxxx Xxxx Los Angeles
42 10 United Nations Plaza 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx
43 Xxxxxx Xxxxxxx West 0000 Xxxxxxx Xxxxx Xxxxxxx
44 Sterling University Greens 0000 Xxx Xxxx Xxxxxx Xxxxxx
00 Xxxxxxxxx Xxx - Xxxxx Xxxx 0000 Xxxxxxxx Xxxx Xxxxxx Sabal Park
46 Birmingham MOB #2 0000 00xx Xxxxxx Xxxxx Xxxxxxxxxx
47 Cutter's Point Apartments 1111 Xxxxxx Road Xxxxxxxxxx
48 The Arbors on Forest Ridge Apartments 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxx
00 Xxxxx Xxxxx Office Building 912 Capitol of Texas Highway Austin
53 Bayshore Palms 0000 Xxxxxxxx Xxxxxxx Safety Harbor
54 0000 Xxxxx'x Xxxx 1425 Lover's Lane Augusta
55 Toscana Apartments 00000 Xxxxx Xxxxxxxxx Xxxxxx
00 Xxxxx Xxxxx Xxxxx 0000 X Xxxxx Xxxxxx Xxxxxxxxxx
58 TownePlace Suites - Tallahassee 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx
00 Xxxxxxx Xxxxxxxx Xxxxx 000 Xxxx Xxxxx Xxxxxx Xxx Xxxxx
61 Xxxxxxx Xxxxxxxx Pavilion 1323-1393 Mt. Zion Road Xxxxxx
63 Pacific Rim Shopping Center 00000 Xxxxxx Xxxxxx Cupertino
64 Pacific Pointe Corporate Center 903 Calle Amanecer San Clemente
65 Sierra Ridge Apartments 1401 Xxxxxxxx Drive San Antonio
67 800 & 000 Xxxx 00xx Xxxxxx 800 & 000 Xxxx 00xx Xxxxxx Xxxxxx
68 Chippenham Medical - Hioaks & Xxxxx 500 Hioaks & 0000-0000 Xxxxxx Xxxx Xxxxxxxx
71 Copper Beech Townhomes Oakwood Ave. Xxxxxx Township
72 0000 Xxxxx Xxxxxx 3615 Xxxxx Avenue Memphis
73 Rite Aid Galt 0000 X Xxxxxx Xxxx
00 Xxxxx Xxxxx Xxxxxxxxx 0000 Xxxxxxx Street Pasadena
76 Xxxxxx'x Xxxx Townhomes 000 X. Xxxxxxxx Xxxx Xxxxxxxxx
77 Birmingham MOB #1 0000 00xx Xxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Houston
79 Gardens Square Retail 00000 XX Xxxxxxx 0 Xxxx Xxxxx Xxxxxxx
00 Xxxxxxx Xxxxxxxx 0000 Xxxxx Xxxxxxxx Xxxxx Xxx
82 Rite Aid Palm Desert 00000 Xxxxxxxxxx Xxxxxx Palm Desert
83 Kershaw Commons 00-000 Xxxxxxxxx Xxxxxx & 00-00 Xxxxxxx Xxxxxx Xxxxxx
84 Kmart Center - Sterling 0000 Xxxxxxx Xxx Sterling
00 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxx
86 0000 Xxxx Xxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx Stamford
88 Riverside Apartments 000 X. Xxxxxxxxx Xxxx Xxxxxxxxxxx
89 American Sports Medicine Institute 0000 00xx Xxxxxx Xxxxx Xxxxxxxxxx
90 Brookside Apartments 5,7,10 and 00 Xxxxxx Xxxx Xxxxxx
00 Xxxxxx Xxxxxxxx - Xxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxx Xxx Xxxxxxxxx
93 Rite Aid -Portage Oakland 0000 X. Xxxxxx Xx. Xxxxxxx
96 Rite Aid Roanoke Xxxxxxx 0000 Xxxxxxx Xxxxxx Roanoke
97 Rite Aid-Xxxxxx NE Xxxxxx xx 0 Xxxx & Xxx Xxxx Xxxxx Xxxxxx
98 00000 Xxxxxxx Xxxx. 00000 Xxxxxxx Xxxx. Encino
99 Southwest General Medical Building 7390 Barlite Road San Antonio
100 Sunshine Village Apartments 1800 - 0000 Xxxxxxxx Xxxxxxxxx Naples
101 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx White Plains
000 Xxxxxx Xxxxxxx 0000 X. Xxxxxx Xxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxxx MHP 000 Xxxxx Xxxxxx Xxxxxxx
104 Meridian Retail Center 1518 - 0000 Xxxx Xxxxx Xxxxxx Meridian
000 Xxxxxx Xxxxxx Apartments 000-000 Xxxxxx Xxxxxx Xxxxxx Xxxx
106 Long Beach Retail 0000 X. Xxxxxxx Xxxxx Xxxxxxx Xxxx Xxxxx
000 Xxxxxxx Xxxxxx Apartments 00-00 Xxxxxxx Xxxxxx Xxxxxxxxx
MORTGAGE CUT-OFF MONTHLY
LOAN ZIP DATE P&I MORTGAGE
NUMBER STATE CODE BALANCE PAYMENT RATE
-----------------------------------------------------------------------------------------------
1 DC 20036 54,520,756.83 407,599.81 7.5800%
2 Various Various 50,000,000.00 377,664.38 7.7500%
2.1 TX 75240
2.2 TX 76006
2.3 GA 30303
2.4 FL 32714
2.5 CA 94404
0.0 XX 00000
0 XX 00000 34,092,026.15 251,663.10 8.0300%
0 XX 00000 30,901,440.30 210,634.24 7.2100%
00 XX 00000 23,750,000.00 See Annex A-6 7.8000%
11 XX 00000 22,500,000.00 155,325.24 7.3700%
00 XX 00000 22,468,627.69 152,118.57 7.1600%
00 XX 00000 20,458,301.13 137,628.35 7.0900%
00 XX 00000 17,878,220.92 127,619.87 7.7000%
00 XX 00000 17,226,054.24 116,834.17 7.1780%
00 XX 00000 16,149,597.72 111,282.76 7.3200%
00 XX 00000 16,122,324.59 117,094.71 7.2500%
00 XX 00000 15,000,000.00 7.3500%
24 XX 00000 14,250,000.00 7.3500%
00 XX 00000 12,775,379.26 87,753.08 7.3000%
26 IN 47407 12,400,000.00 86,193.71 7.4400%
00 XX 00000 12,356,343.86 92,199.90 8.1400%
00 XX 00000 11,993,402.55 83,167.45 7.4100%
00 XX 00000 10,110,937.96 68,562.88 7.1760%
00 XX 00000 9,500,000.00 7.3500%
00 XX 00000 9,466,276.76 66,425.38 7.5000%
00 XX 00000 9,454,449.61 68,666.65 7.2500%
00 XX 00000 9,255,408.55 67,221.04 7.2500%
00 XX 00000 8,064,340.25 59,096.48 7.9400%
00 XX 00000 7,458,695.04 87,934.13 7.2200%
00 XX 00000 7,469,678.01 56,608.84 8.3000%
00 XX 00000 7,463,914.73 55,032.34 8.0000%
00 XX 00000 7,259,796.50 85,589.22 7.2200%
00 XX 00000 7,241,000.00 50,332.96 7.4400%
00 XX 00000 6,558,971.57 54,037.46 8.7000%
00 XX 00000 6,464,202.36 76,209.58 7.22000%
00 XX 00000 6,250,000.00 7.3500%
00 XX 00000 6,250,000.00 7.3500%
00 XX 00000 5,381,854.44 38,686.26 7.7500%
00 XX 00000 5,344,747.54 38,473.80 7.7700%
00 XX 00000 5,315,958.24 38,148.95 7.7500%
00 XX 00000 5,250,000.00 7.3500%
00 XX 00000 5,190,371.26 36,145.75 7.4400%
00 XX 00000 5,180,593.80 42,681.40 8.7000%
00 XX 00000 5,002,153.04 37,185.53 8.1000%
00 XX 00000 4,954,604.29 35,358.46 7.6800%
00 XX 00000 4,885,860.58 34,935.05 7.7000%
00 XX 00000 4,864,074.63 34,721.16 7.7000%
00 XX 00000 4,750,000.00 7.3500%
00 XX 00000 4,484,878.70 32,238.55 7.7500%
00 XX 00000 4,176,869.22 49,243.11 7.2200%
00 XX 00000 3,986,107.73 28,242.99 7.6000%
00 XX 00000 3,680,416.93 27,407.16 8.1400%
00 XX 00000 3,308,967.89 33,926.58 6.9420%
00 XX 00000 3,286,626.28 24,884.66 8.2900%
00 XX 00000 3,198,657.20 23,883.24 8.1800%
00 XX 00000 2,983,478.02 35,173.65 7.2200%
00 XX 00000 2,983,478.02 35,173.65 7.2200%
00 XX 00000 2,926,412.01 20,783.84 7.6300%
00 XX 00000 2,907,066.95 22,055.60 7.7500%
00 XX 00000 2,637,271.59 26,880.00 6.8280%
00 XX 00000 2,358,072.98 16,739.32 7.6250%
00 XX 00000 2,352,857.69 16,436.87 7.4600%
00 XX 00000 2,295,971.09 16,303.00 7.6400%
00 XX 00000 2,243,761.59 16,353.12 7.9000%
00 XX 00000 2,142,972.90 15,588.99 7.8750%
00 XX 00000 2,088,434.61 24,621.56 7.2200%
00 XX 00000 2,000,000.00 14,155.88 7.6250%
00 XX 00000 1,997,597.99 14,328.24 7.7500%
00 XX 00000 1,706,072.12 17,535.83 6.990144
00 XX 00000 1,588,520.49 16,184.02 6.820144
00 XX 00000 1,478,788.32 15,011.22 6.750144
00 XX 00000 1,466,704.77 11,294.79 8.4700%
00 XX 00000 1,392,289.74 16,414.37 7.2200%
000 XX 00000 1,276,433.23 9,280.89 7.8750%
000 XX 00000 1,257,832.28 9,488.50 8.2500%
000 XX 00000 1,202,018.19 9,187.76 8.4000%
000 XX 00000 897,446.84 6,920.22 8.5000%
000 XX 00000 882,594.91 6,493.82 8.0000%
000 XX 00000 867,076.53 6,232.79 7.7500%
000 XX 00000 663,366.40 5,113.27 8.5000%
000 XX 00000 516,705.35 3,951.81 8.4150%
Original Remaining
Term to Term to Maturity
Mortgage Maturity Maturity State Maturity Date or ARD
Loan or ARD or ARD Date (or Balloon
Number (Mos.) (Mos.) ARD Date) Balance
-------------------------------------------------------------------------
1 120 116 1-Feb-11 44,563,670.12
2 120 115 1-Jan-11 45,402,308.38
2.1
2.2
2.3
2.4
2.5
2.6
4 120 115 1-Jan-11 30,593,990.26
6 120 116 1-Feb-11 27,170,353.43
10 117 113 10-Nov-10
11 120 115 1-Jan-11 21,400,777.79
12 120 118 1-Apr-11 19,704,844.06
14 120 117 1-Mar-11 17,923,114.00
16 120 118 1-Apr-11 15,892,236.38
17 120 118 1-Apr-11 15,114,130.56
19 120 116 1-Feb-11 14,238,800.72
20 120 116 1-Feb-11 13,051,208.83
21 120 115 1-Jan-11 15,000,000.00
24 120 115 1-Jan-11 14,250,000.00
25 120 117 1-Mar-11 11,252,309.05
26 120 119 1-May-11 11,327,280.05
27 120 114 1-Dec-10 11,123,509.52
28 102 101 1-Nov-09 10,868,959.56
30 120 118 1-Apr-11 8,870,876.27
32 120 115 1-Jan-11 9,500,000.00
33 120 115 1-Jan-11 8,389,357.38
34 120 116 1-Feb-11 7,653,486.82
36 120 116 1-Feb-11 7,492,360.13
38 120 113 1-Nov-10 7,230,786.79
40 120 119 1-May-11
41 120 113 1-Nov-10 6,751,954.88
42 120 112 1-Oct-10 6,706,032.97
43 120 119 1-May-11
44 120 119 1-May-11 6,614,582.93
45 120 113 1-Nov-10 5,544,999.78
46 120 119 1-May-11
47 120 115 1-Jan-11 6,250,000.00
48 120 115 1-Jan-11 6,250,000.00
52 120 115 1-Jan-11 4,798,242.20
53 120 116 1-Feb-11 4,764,156.79
54 120 117 1-Mar-11 4,734,361.75
55 120 115 1-Jan-11 5,250,000.00
57 120 117 1-Mar-11 4,587,621.55
58 120 113 1-Nov-10 4,379,710.80
59 120 114 1-Dec-10 4,498,998.00
61 120 116 1-Feb-11 4,406,932.55
63 120 116 1-Feb-11 4,347,866.08
64 120 118 1-Apr-11 4,323,753.73
65 120 115 1-Jan-11 4,750,000.00
67 120 115 1-Jan-11 3,998,535.17
68 120 119 1-May-11
71 120 115 1-Jan-11 3,541,171.74
72 120 117 1-Mar-11 3,308,029.05
73 144 144 1-Jun-13 0.00
74 60 53 1-Nov-05 3,169,109.00
76 120 113 1-Nov-10 2,898,924.17
77 120 119 1-May-11
78 120 119 1-May-11
79 120 116 1-Feb-11 2,599,809.86
80 120 116 1-Feb-11 2,387,774.45
82 144 144 1-Jun-13 0.00
83 120 116 1-Feb-11 2,094,648.12
84 120 116 1-Feb-11 2,081,653.76
85 120 117 1-Mar-11 2,039,344.30
86 120 116 1-Feb-11 2,006,159.82
88 120 115 1-Jan-11 1,916,205.11
89 120 119 1-May-11
90 120 115 1-Jan-11 1,884,320.00
91 120 118 1-Apr-11 1,777,851.17
93 144 144 1-Jun-13 0.00
96 144 144 1-Jun-13 0.00
97 144 144 1-Jun-13 0.00
98 120 112 1-Oct-10 1,331,521.74
99 120 119 1-May-11
100 120 116 1-Feb-11 1,140,597.44
101 120 113 1-Nov-10 1,135,717.52
102 120 114 1-Dec-10 1,088,376.09
103 60 55 1-Jan-06 866,044.08
104 120 116 1-Feb-11 790,970.93
105 120 115 1-Jan-11 773,049.47
106 120 116 1-Feb-11 601,243.97
107 120 116 1-Feb-11 467,439.06
Mortgage Original Remaining Ground Master ARD Anticipated
Loan Amortization Amortization Lease Servicing Loan Repayment
Number Property Name Term Term (Y/N) Fee Rate (Y/N) Date
----------------------------------------------------------------------------------------------------------------------------------
1 0000 Xxxxxxxxxxx Xxx., X.X. 300 296 N 0.0250% N NA
2 Innkeepers Portfolio 300 300 N 0.0250% N NA
2.1 Marriott Residence Inn Dallas-Addison N 0.0250%
2.2 Marriott Residence Inn -Arlington N 0.0250%
2.3 Marriott Residence Inn Atlanta - Downtown N 0.0250%
2.4 Marriott Residence Inn Orlando-Altamonte N 0.0250%
2.5 Marriott Residence Inn - San Mateo N 0.0250%
2.6 Marriott Residence Inn - Xxxxxxx N 0.0250%
4 Villa La Jolla Apartments 360 355 N 0.0250% N XX
0 Xxxxxx Xxxxx Xxxxxxxxxx 000 000 X 0.0250% Y 1-Feb-11
00 Xxxxx Xxxxxxxxxxxxxx Xxxxxxxx 117 000 X 0.0000% X XX
00 Xx Xxxxx Xxxxxxx Apartments 360 360 N 0.0250% N NA
12 0 Xxxx 00xx Xxxxxx 360 358 N 0.0250% Y 1-Apr-11
14 Monaco Park Apartments 360 357 N 0.0250% N NA
16 Spectrum Pointe 360 358 N 0.0250% N NA
17 Center Point Shopping Center 360 358 N 0.0250% N NA
19 Peppertree Apartments 360 356 N 0.0250% N NA
20 Brighton Arms Apartments 300 296 N 0.0250% N XX
00 Xxxxx Xxxxx Xxxxxxxxxx XX XX N 0.0250% N XX
00 Xxxxxxxxx Xxxxx Xxxxxxxxxx XX XX N 0.0250% N NA
25 Market at Xxxxx 360 357 N 0.0250% N NA
26 Sterling University Xxxx 360 360 N 0.0250% N NA
27 Eight Neshaminy Interplex 360 354 N 0.0250% N NA
00 Xxxxxxxx Xxxxxxx Xxxxxx 360 359 N 0.0250% N NA
30 Deep River Shopping Center 360 358 N 0.0250% N NA
32 Timberglen Apartments NA NA N 0.0250% N NA
00 Xxxxxxxxxxxx Xxxxxx 360 000 X 0.0000% X XX
00 Xxxxxx Xxx Apartments 300 296 N 0.0250% N NA
36 Tree Haven Apartments 300 296 N 0.0250% N NA
00 Xxxxxxx Xxxxxxxx Xxxx 360 353 N 0.0250% N NA
40 Xxxxxxxx- Xxxxxx MOB's 120 000 X 0.0000% X XX
00 Xxxxxxxx Xx Jolla 360 353 N 0.0250% Y 1-Nov-10
42 10 United Nations Plaza 360 352 N 0.0250% N NA
43 Xxxxxx Xxxxxxx West 120 119 N 0.0250% N NA
44 Sterling University Greens 360 360 N 0.0250% N XX
00 Xxxxxxxxx Xxx - Xxxxx Xxxx 300 293 Y 0.0250% N NA
46 Birmingham MOB #2 120 119 N 0.0250% N XX
00 Xxxxxx'x Xxxxx Xxxxxxxxxx XX XX N 0.0250% N NA
48 The Arbors on Forest Ridge Apartments NA NA N 0.0250% N NA
00 Xxxxx Xxxxx Xxxxxx Xxxxxxxx 000 355 N 0.0250% N NA
53 Bayshore Palms 360 356 N 0.0250% N NA
54 0000 Xxxxx'x Xxxx 360 357 N 0.0250% N XX
00 Xxxxxxx Xxxxxxxxxx XX XX N 0.0250% N NA
57 North Royal Plaza 360 357 N 0.0250% N NA
58 TownePlace Suites - Tallahassee 300 293 Y 0.0250% N NA
59 Nucleus Business Plaza 360 354 N 0.0250% N NA
61 Xxxxxxx Xxxxxxxx Pavilion 360 356 N 0.0250% N NA
63 Pacific Rim Shopping Center 360 356 N 0.0250% N NA
64 Pacific Pointe Corporate Center 360 358 N 0.0250% N XX
00 Xxxxxx Xxxxx Xxxxxxxxxx XX XX N 0.0250% N NA
67 800 & 000 Xxxx 00xx Xxxxxx 360 355 N 0.0250% N NA
68 Chippenham Medical - Hioaks & Xxxxx 120 119 N 0.0250% N NA
71 Copper Beech Townhomes 360 355 N 0.0250% N NA
72 0000 Xxxxx Xxxxxx 360 357 N 0.0250% N NA
73 Rite Aid Galt 144 144 N 0.0250% N NA
00 Xxxxx Xxxxx Xxxxxxxxx 000 353 N 0.0250% N NA
76 Xxxxxx'x Xxxx Townhomes 360 359 N 0.0250% N NA
77 Birmingham MOB #1 120 119 N 0.0250% N NA
78 Bellaire Plaza 120 119 N 0.0250% N NA
00 Xxxxxxx Xxxxxx Retail 360 356 N 0.0250% N NA
80 Xxxxxxx Building 300 296 N 0.0250% N NA
82 Rite Aid Palm Desert 144 144 N 0.0250% N NA
83 Kershaw Commons 360 356 N 0.0250% N NA
84 Kmart Center - Sterling 360 356 N 0.0250% N NA
85 Xxxxxxx Xxxxx Apartments 360 357 N 0.0250% N NA
86 0000 Xxxx Xxxx Xxxxxx 360 356 N 0.0250% N NA
88 Riverside Apartments 360 355 N 0.0250% N NA
89 American Sports Medicine Institute 120 119 N 0.0250% N NA
90 Brookside Apartments 360 000 X 0.0000% X XX
00 Xxxxxx Xxxxxxxx - Xxx Xxxxxxxxx 360 358 N 0.0250% N NA
93 Rite Aid -Portage Oakland 144 144 N 0.0250% N NA
96 Rite Aid Roanoke Xxxxxxx 144 144 N 0.0250% N NA
97 Rite Aid-Xxxxxx 144 144 Y 0.0250% N NA
98 00000 Xxxxxxx Xxxx. 360 352 N 0.0250% N NA
99 Southwest General Medical Building 120 119 Y 0.0250% N NA
100 Sunshine Village Apartments 360 356 N 0.0250% N NA
101 000 Xxxxx Xxxxxxxx 360 353 N 0.0250% N NA
000 Xxxxxx Xxxxxxx 360 000 X 0.0000% X XX
000 Xxxxxxxxx Xxxxxxx MHP 360 355 N 0.0250% N NA
000 Xxxxxxxx Xxxxxx Xxxxxx 360 356 N 0.0250% N NA
000 Xxxxxx Xxxxxx Xxxxxxxxxx 000 000 X 0.0000% X XX
000 Xxxx Xxxxx Retail 360 356 Y 0.0250% N NA
000 Xxxxxxx Xxxxxx Xxxxxxxxxx 000 356 N 0.0250% N NA
Credit
Mortgage Mortgage Lease
Loan Loan Loan
Number Additional Interest Rate Seller (Y/N)
-------------------------------------------------------------------------------------------------------------
1 NA FUNB N
2 NA FUNB N
2.1 FUNB N
2.2 FUNB N
2.3 FUNB N
2.4 FUNB N
2.5 FUNB N
2.6 FUNB N
4 NA FUNB N
6 Greater of Initial Rate + 5% or Treasury Rate + 5% FUNB N
10 NA FUNB Y
11 NA FUNB N
12 greater of (I) initial interest rate plus 3% or (ii) Treasury rate plus 4% FUNB N
14 NA FUNB N
16 NA FUNB N
17 NA FUNB N
19 NA FUNB N
20 NA FUNB N
21 NA FUNB N
24 NA FUNB N
25 NA FUNB N
26 NA FUNB N
27 NA FUNB N
28 NA FUNB N
30 NA FUNB N
32 NA FUNB N
33 NA FUNB N
34 NA FUNB N
36 NA FUNB N
38 NA FUNB N
40 NA FUNB N
41 Greater of interest rate+2% OR Treas. Yield Index + 2% FUNB N
42 NA FUNB N
43 NA FUNB N
44 NA FUNB N
45 NA FUNB N
46 NA FUNB N
47 NA FUNB N
48 NA FUNB N
52 NA FUNB N
53 NA FUNB N
54 NA FUNB N
55 NA FUNB N
57 NA FUNB N
58 NA FUNB N
59 NA FUNB N
61 NA FUNB N
63 NA FUNB N
64 NA FUNB N
65 NA FUNB N
67 NA FUNB N
68 NA FUNB N
71 NA FUNB N
72 NA FUNB N
73 NA FUNB Y
74 NA FUNB N
76 NA FUNB N
77 NA FUNB N
78 NA FUNB N
79 NA FUNB N
80 NA FUNB N
82 NA FUNB Y
83 NA FUNB N
84 NA FUNB N
85 NA FUNB N
86 NA FUNB N
88 NA FUNB N
89 NA FUNB N
90 NA FUNB N
91 NA FUNB N
93 NA FUNB Y
96 NA FUNB Y
97 NA FUNB Y
98 NA FUNB N
99 NA FUNB N
100 NA FUNB N
101 NA FUNB N
102 NA FUNB N
103 NA FUNB N
104 NA FUNB N
105 NA FUNB N
106 NA FUNB N
107 NA FUNB N
Mortgage Lease Collateralized Defeasance
Loan Enhancement RVI / Defaulted Loan
Number CTL Tenant CTL Guarantor Policy Policy Flag (Y/N)
---------------------------------------------------------------------------------------------------------------------------
1
2 Innkeepers Y
2.1 Innkeepers
2.2 Innkeepers
2.3 Innkeepers
2.4 Innkeepers
2.5 Innkeepers
2.6 Innkeepers
4 Y
6 Y
10 Qwest Communications Corporation X
00 X
00 X
00 X
00 Xxxx 0 Y
17 Y
19 Y
20 Y
21 Cornerstone 2 Y
24 Xxxxxxxxxxx 0 X
00 X
00 X
00 X
00 X
30 Y
32 Xxxxxxxxxxx 0 X
00 X
00 X
00 X
38 Y
40 HRT POOL X
00 X
00 X
00 XXX XXXX X
00 X
00 X
00 XXX XXXX Y
47 Cornerstone 2 Y
48 Cornerstone 2 Y
52 B&G Pool Y
53 Y
54 Y
55 Xxxxxxxxxxx 0 X
00 X
00 X
00 X
00 X
63 Y
64 Xxxx 2 Y
65 Cornerstone 2 Y
67 B&G Pool Y
68 HRT POOL Y
71 Y
72 Y
73 Rite Aid of California Rite Aid Corporation N X X
00 X
00 X
00 XXX XXXX Y
78 HRT POOL Y
79 Y
80 Y
82 Rite Aid of California Rite Aid Corporation N Y Y
83 Y
84 Y
85 Y
86 Y
88 Y
89 HRT POOL Y
90 Y
91 Y
93 Rite Aid of Michigan, Inc. Rite Aid Corporation Y N Y
96 Rite Aid of Virginia, Inc. Rite Aid Corporation Y N Y
97 Rite Aid of Michigan, Inc. Rite Aid Corporation Y N Y
98 Y
99 HRT POOL Y
100 Y
101 Y
102 Y
103 X
000 X
000 X
000 X
000 X
Interest Annual Initial Deposit
Mortgage Reserve Monthly Monthly Deposit to to Capital
Loan Secured Loan Tax Insurance Replacement Improvements Initial
Number by LC (Y/N) Lock Box Escrow Escrow Reserve Reserve TI/LC Escrow
------------------------------------------------------------------------------------------------------------------------
0 X X Xxxxxxxxx X X
0 X X Xxxx X Y 977,080.32
2.1 None
2.2 None
2.3 None
2.4 None
2.5 None
2.6 None
4 Y Y None Y N
6 N Y Hard Y Y 115,200.00 4,243.75
00 X X Xxxx X X
00 X X Xxxx X Y 67,200.00
00 X X Xxxx X X 000,000.00 000,000.00
00 X X Xxxx X Y 56,799.96
16 N Y Springing Y Y 17,516.76
00 X X Xxxx X X 0,000.00
00 X X Xxxx X N 100,565.04 53,125.00
20 N Y Hard Y N 107,000.04 109,320.00
21 N Y Springing Y Y 96,800.04
24 N Y Springing Y Y 72,399.96 126,340.00
25 N Y None Y N 33,240.12 9,083.75
00 X X Xxxx X X 00,000.00
00 X X Xxxx X Y 28,401.84 44,192.50 500,000.00
28 N Y None Y N 12,610.08 1,500.00
00 X X Xxxx X X
00 X X Xxxxxxxxx X Y 60,800.04 2,200.00
00 X X Xxxx X X 0,000.00
00 X X Xxxx X N 90,627.96 77,587.50
36 N Y Hard Y N 70,524.24 103,287.50
38 N Y None Y Y 32,372.76
00 X X Xxxxxxxxx X X
00 X X Xxxx X Y 35,634.00 44,750.00
42 N Y None Y Y 18,603.84 46,500.00
00 X X Xxxxxxxxx X X
00 X X Xxxx X N 39,000.00
45 N Y None Y Y 104,621.76
00 X X Xxxxxxxxx X X
00 X Y Springing Y Y 39,200.04 5,000.00
48 N Y Springing Y Y 42,000.00
00 X X Xxxx X X 00,000.00
00 X X Xxxx X Y 50,000.04 149,117.50
54 N Y None N N 10,000.00
00 X X Xxxxxxxxx X X 00,000.00
00 X X Xxxx X Y 7,780.68 4,372.50
00 X X Xxxx X X 00,000.00
00 X X Xxxx X Y 16,955.64 625,000.00
61 N Y None Y Y 7,363.56 222,750.00 55,670.00
63 N Y None Y Y 10,945.20 102,179.69 250,000.00
64 N Y Hard Y Y 4,152.24
00 X X Xxxxxxxxx X X 00,000.00
00 X X Xxxx X Y 20,252.40 18,500.00
00 X X Xxxxxxxxx X X
00 X X Xxxx X Y 12,000.00
00 X X Xxxx X X 15,699.96
00 X X Xxxx X X
00 X X Xxxx X Y 62,750.04 71,158.75
76 N Y None Y Y 36,846.00 149,033.75
00 X X Xxxxxxxxx X X
00 X Y Springing N N
79 N Y None Y Y 1,996.32 17,312.50 100,000.00
80 N Y None Y Y 18,972.12 3,437.50
00 X X Xxxx X X
00 X X Xxxx X Y 10,500.00
84 N Y None N Y 15,744.00 34,205.00
00 X X Xxxx X X 00,000.00 00,000.00
00 X X Xxxx X Y 10,976.40 25,000.00
88 N Y None Y Y 36,386.04 47,562.50
00 X X Xxxxxxxxx X X
00 X X Xxxx X Y 12,848.04 11,062.50
91 N Y None Y Y 1,260.00 1,875.00
93 N N Hard N N 3,354.00
96 N N Hard N N 2,211.36
00 X X Xxxx X X
00 X X Xxxx X Y 2,057.52
00 X X Xxxxxxxxx X X
000 X X Xxxx X Y 9,750.00 5,537.50
000 X X Xxxx X X 0,000.00
000 X X Xxxx X Y 6,399.96
103 N Y None Y Y 3,600.00 22,025.00
104 N Y None Y Y 999.96 17,156.25
000 X X Xxxx X X 0,000.00
000 X X Xxxx X Y 417.48 29,000.00
107 N Y None Y Y 2,000.04
EXHIBIT B
Mortgage Loan Purchase Agreement, dated as of June 10, 2001.
Certificates:
-------------
First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2001-C2
--------------------------------------------------------------------------------
Aggregate Certificate
Principal Balance or
Initial Aggregate Percentage Interest of
Class Certificate Principal Class to be Retained
Designation Balance of Class by Seller Purchase Price
--------------------------------------------------------------------------------
V $1,175,112 $1,175,112 $1,175,112
--------------------------------------------------------------------------------
Z-I N/A 100% 0
--------------------------------------------------------------------------------
