MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AND SALE AGREEMENT (this
"Agreement") dated as of June 1, 1999, is between PaineWebber Mortgage
Acceptance Corporation V, a Delaware corporation (the "Purchaser"), and Xxxxxxx
Xxxxx Mortgage Capital Inc., a Delaware Corporation (the "Mortgage Loan
Seller").
The Mortgage Loan Seller intends to sell, assign and transfer
to the Purchaser, subject to the terms and conditions set forth below, certain
mortgage loans (the "Mortgage Loans"), which are described in, and set forth in,
the mortgage loan schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A.
The Purchaser intends to deposit the Mortgage Loans into a
trust fund (the "Trust Fund"), beneficial ownership of which will be evidenced
by a series of mortgage pass-through certificates (the "Certificates"). The
Trust Fund will be created and the Certificates will be issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of June 1, 1999, by and among PaineWebber Mortgage Acceptance Corporation V, as
depositor (the "Depositor"), Banc One Mortgage Capital Markets, LLC, as servicer
(the "Servicer"), Banc One Mortgage Capital Markets, LLC, as special servicer
(the "Special Servicer"), LaSalle Bank National Association, as trustee (in such
capacity, the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "Fiscal
Agent"). The Purchaser intends to sell certain of the Certificates (the
"Privately Placed Certificates") in a private placement pursuant to Section 4(2)
of the Securities Act of 1933 (the "Securities Act") through PaineWebber
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in such
capacity, the "Placement Agents") on the Closing Date (defined below) pursuant
to a Certificate Purchase Agreement (the "Certificate Purchase Agreement") dated
as of June 1, 1999. The Purchaser intends to sell certain of the Certificates
(the "Publicly Offered Certificates") to PaineWebber Incorporated and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in such capacity, the
"Underwriters") on the Closing Date pursuant to an underwriting agreement (the
"Underwriting Agreement") dated as of June 1, 1999. The transactions
contemplated by the Pooling and Servicing Agreement are sometimes referred to
herein as the "Securitization Transaction." Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Pooling and Servicing Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals,
which are incorporated into the operative provisions of this Agreement by this
reference, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto
hereby agree as follows:
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ARTICLE I.
DEFINITIONS
"Allocable Share": A fraction, the numerator of which is the stated
principal balance of the Mortgage Loans and the denominator is the sum of (i)
the stated principal balance of the Mortgage Loans and (ii) the stated principal
balance of the mortgage loans sold to the Purchaser by Xxxxx Xxxxxx Real Estate
Securities Inc. pursuant to the PW Mortgage Loan Purchase and Sale Agreement, or
as otherwise separately agreed upon in writing by the Purchaser, the Mortgage
Loan Seller and Xxxxx Xxxxxx Real Estate Securities Inc.
"Bondable Lease": The bondable lease identified in Exhibit F attached
hereto.
"Breach": The meaning ascribed to such term in Section 3.3.
"Closing Date": June 7, 1999.
"Credit Lease": A lease of real property on a long-term net-lease basis
to a Tenant whose long-term unsecured debt rating (or the long-term unsecured
debt rating of the guarantor of its obligations under the related lease) is the
basis on which the related Mortgage Loan Seller underwrote the related Mortgage
Loan.
"Credit Tenant Loan": Any Mortgage Loan that is secured by a Mortgage
on a Mortgaged Property that is leased on a long-term net-lease basis to a
Tenant whose long-term unsecured debt rating (or the long-term unsecured debt
rating of the guarantor of its obligations under the related lease) is the basis
on which the related Mortgage Loan Seller underwrote the related Mortgage Loan.
"Credit Tenant Property": A Mortgaged Property that is leased to one or
more Tenants pursuant to one or more Credit Leases.
"Cut-off Date": June 1, 1999.
"Defective Document Mortgage Loan": The meaning ascribed to such term
in Section 3.3(b).
"Earn-out Loan": A Mortgage Loan identified in Exhibit E attached
hereto.
"Initial Pool Balance": An amount equal to approximately $704,764,603.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee or leasehold interest in the related Mortgaged Property.
"Mortgage File": The meaning ascribed to such term in Section 2.4(a).
"Mortgage Loan": Each of the mortgage loans transferred and assigned to
the Purchaser pursuant to Section 2.03 of this Agreement. As used herein, the
term "Mortgage Loan" includes
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each related Mortgage Note, the related Mortgage and other documents contained
in the related Mortgage File and any related agreements.
"Mortgage Loan Document": Each related Mortgage Note, Mortgage,
Assignment of Leases (if any) and other agreements executed in connection with
such Mortgage Loan, collectively, the "Mortgage Loan Documents."
"Mortgage Note": Each of the original executed notes evidencing the
indebtedness of a Mortgagor under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgaged Property": The real property subject to the lien of a Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that owns or has acquired the related Mortgaged
Property and/or assumed the obligations of the original obligor under the
Mortgage Note.
"PW Mortgage Loan Purchase and Sale Agreement": That certain mortgage
loan purchase and sale agreement, dated as of even date hereof, by and between
Xxxxx Xxxxxx Real Estate Securities Inc., as mortgage loan seller, and the
Purchaser.
"Policies": The meaning ascribed to such term in Section 3.2(b)(lii).
"Prospectus Supplement": That certain prospectus supplement, dated June
1, 1999, related to the Publicly Offered Certificates.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances and P&I Advances in accordance with the Pooling
and Servicing Agreement, which rate per annum shall equal the "Prime Rate"
published in the "Money Rates" section of "The Wall Street Journal" (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Repurchase Price": With respect to any Mortgage Loan or REO Loan
required to be purchased pursuant to Section 3.3, an amount equal to the sum of:
(i) the outstanding principal balance of such Mortgage Loan as
of the date of purchase;
(ii) all accrued and unpaid interest to but not including the
Due Date in the Due Period during which such Mortgage Loan or REO Loan
was purchased;
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest on related Advances at the Reimbursement Rate and
unpaid Special Servicing Fees allocable to such Mortgage Loan; plus
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(iv) all reasonable out-of-pocket expenses reasonably incurred
or to be incurred by the Servicer, the Special Servicer, the Depositor
or the Trustee in respect of the Breach or defect giving rise to the
repurchase obligation, including any expenses arising out of the
enforcement of the repurchase obligation.
"Tenant": A tenant of a Credit Tenant Property.
[End of Article I]
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ARTICLE II.
PURCHASE, SALE AND CONVEYANCE OF MORTGAGE LOANS
2.1. Agreement to Sell Mortgage Loans. (a) Subject to the
terms and conditions of this Agreement, the Mortgage Loan Seller agrees to sell,
and the Purchaser agrees to purchase, the Mortgage Loans on the Closing Date;
provided, however, that the Purchaser shall not be obligated to purchase any
Mortgage Loan which fails to satisfy the representations and warranties set
forth in Section 3.1 hereof.
(b) The closing for the purchase and sale of the Mortgage
Loans shall take place at the offices of O'Melveny & Xxxxx LLP, New York, New
York, at 10:00 a.m. New York time, on the Closing Date.
2.2. Purchase Price. On the Closing Date, as full
consideration for the Mortgage Loan Seller's sale of the Mortgage Loans to the
Purchaser, the Purchaser will deliver to the Mortgage Loan Seller an amount
equal to $ 237,549,473.16 in immediately available funds, which represents the
purchase price for the Mortgage Loans net of the Mortgage Loan Seller's
Allocable Share of expenses as provided in Section 5.1(b).
2.3. Conveyance of Mortgage Loans. On the Closing Date, the
Mortgage Loan Seller shall sell, transfer, assign, set over and otherwise convey
to the Purchaser, without recourse but subject to the terms of this Agreement,
and the Purchaser shall purchase, all right, title and interest of the Mortgage
Loan Seller in and to the Mortgage Loans, including: (i) all scheduled payments
of interest and principal due on or with respect to the Mortgage Loans after the
Cut-off Date (whether or not received); (ii) all other payments of interest and
principal received by the Mortgage Loan Seller on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal which were due on or prior to the Cut-off Date; and (iii) all of
the Mortgage Loan Seller's right, title and interest in and to the proceeds of
any related title, hazard or other insurance policies received by the Mortgage
Loan Seller on or with respect to the Mortgage Loans after the Cut-off Date.
Upon payment of the Purchase Price as provided in Section 2.2, the Mortgage Loan
Seller shall be deemed to have sold, transferred, assigned, set over and
conveyed to the Purchaser the Mortgage Loans, together with all right title and
interest of the Mortgage Loan Seller in and to the Mortgage Loans as described
in the immediately preceding sentence. Upon such sale, the ownership of each
Mortgage Note, the Mortgage and all related documents and instruments contained
in the related Mortgage File shall immediately vest in the Purchaser, its
successors and assigns and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of the Mortgage Loan Seller shall immediately vest in the Purchaser,
its successors and assigns. The contents of any Mortgage File in the possession
of the Mortgage Loan Seller at any time after such sale, and any payments on the
Mortgage Loans due after the Cut-off Date and received by the Mortgage Loan
Seller, shall be held in trust by the Mortgage Loan Seller for the benefit of
the Purchaser, its successors and assigns as the owner thereof, and shall be
promptly delivered by the Mortgage Loan Seller to or upon the order of the
Purchaser, its successors and assigns.
2.4. Delivery of Mortgage Loan Documents. (a) On or before the
Closing Date, the Mortgage Loan Seller shall deliver to and deposit with, or
cause to be delivered to and
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deposited with, the Purchaser, the Trustee or a custodian of the Trustee (as
Purchaser shall direct), each of the following documents for each Mortgage Loan
(such documents, the "Mortgage File"):
(i) each original Mortgage Note, bearing, or accompanied by, all
prior and intervening endorsements or assignments showing a
complete chain of endorsement or assignment from the
originator of the Mortgage Loan to a Mortgage Loan Seller, and
further endorsed (at the direction of the Purchaser), on its
face or by allonge attached thereto, without recourse, to the
order of the Trustee in the following form: "Pay to the order
of LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1, without recourse, representation or warranty,
express or implied" or in blank;
(ii) the original Mortgage (or a certified copy thereof from the
applicable recording office) and originals (or certified
copies from the applicable recording office) of any
intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the
applicable Mortgage Loan Seller, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form, to
"LaSalle Bank National Association, as trustee for the
registered Holders of PaineWebber Mortgage Acceptance
Corporation V Commercial Mortgage Pass-Through Certificates,
Series 1999-C1" or in blank;
(iv) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the applicable Mortgage Loan Seller, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage), in
recordable form, executed by the applicable Mortgage Loan
Seller to "LaSalle Bank National Association, as Trustee for
the benefit of Certificateholders of PaineWebber Commercial
Mortgage Pass-Through Certificates, Series 1999-C1" or in
blank;
(vi) an original or copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan (if different than the applicable Mortgage
Loan Seller) to the applicable Mortgage Loan Seller, in each
case with evidence of recording thereon;
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(vii) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage), in
recordable form, executed by the Mortgage Loan Seller to
"LaSalle Bank National Association, as Trustee for the benefit
of Certificateholders of PaineWebber Commercial Mortgage
Pass-Through Certificates, Series 1999-C1" or in blank;
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements,
with evidence of recording thereon, where appropriate, in
those instances where the terms or provisions of the Mortgage,
Mortgage Note or any related security document have been
consolidated or modified or the Mortgage Loan has been
assumed;
(ix) the original lender's title insurance policy or a copy thereof
effective as of the date of the recordation of the Mortgage
Loan, together with all endorsements or riders that were
issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a first lien on the
Mortgagor's fee interest in the Mortgaged Property, or if the
policy has not yet been issued, an original or copy of a
written commitment, interim binder or the pro forma title
insurance policy, dated as of the date on which the related
Mortgage Loan was funded;
(x) the original or a copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements or
copies thereof sufficient to perfect (and maintain the
perfection of) the security interest held by the originator of
the Mortgage Loan (and each assignee prior to the Trustee) in
and to the personalty of the Mortgagor at the Mortgaged
Property (in each case with evidence of filing thereon), and
to transfer such security interest to the Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, any Mortgage Note or other document or instrument
referred to above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loan with Additional Debt that is
subordinate to such Mortgage Loan, a subordination agreement,
pursuant to which such Additional Debt is subordinated to such
Mortgage Loan;
(xiv) a survey of the related Mortgaged Property;
(xv) in the case of a CTL Loan, the original Residual Value Policy
and/or Lease Enhancement Policy, if any, with all
endorsements;
(xvi) the original or copy of any related cash management agreements
and
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lockbox agreements, if any;
(xvii) the original or copy of any related environmental reports;
(xviii) the original or copy of any related Sub-Servicing Agreement,
if any;
(xix) the original or copy of any related ground leases; and
(xx) any additional documents required to be added to the Mortgage
File pursuant to this Agreement;
(b) If the Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, the original Mortgage Note, the Mortgage
Loan Seller shall deliver a copy or duplicate original of such Mortgage Note,
together with an affidavit certifying that the original thereof has been lost or
destroyed and indemnification of the Purchaser and of the Trustee on behalf of
the Trust Fund against any losses that the Trust Fund may incur by reason of
such lost or destroyed Mortgage Note. If the Mortgage Loan Seller cannot
deliver, or cause to be delivered, as to any Mortgage Loan, any of the documents
and/or instruments referred to in clauses (ii), (iv), (vi), (viii), (xi) and
(xii) of Section 2.4(a), with evidence of filing or recording thereon, solely
because of a delay caused by the public recording or filing office where such
document or instrument has been delivered for recordation or filing, the
delivery requirements of this Mortgage Loan Purchase Agreement shall be deemed
to have been satisfied as to such non-delivered document or instrument provided
that a photocopy of such non-delivered document or instrument (certified by the
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for recording or filing) is delivered to the Purchaser, the Trustee or
a Custodian appointed thereby on or before the Closing Date, and either the
original of such non-delivered document or instrument, or a photocopy thereof
(certified by the appropriate county recorder's office, in the case of the
documents and/or instruments referred to in clause (ii) of Section 2.4(a) to be
a true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, is delivered to the
Purchaser, the Trustee or such Custodian within 120 days of the Closing Date (or
within such longer period after the Closing Date as the Purchaser may consent
to, which consent shall not be unreasonably withheld so long as the Mortgage
Loan Seller is, as certified in writing to the Purchaser and the Trustee no less
often than every 90 days, in good faith attempting to obtain from the
appropriate county recorder's office such original or photocopy). If the
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, any of the documents and/or instruments referred to in the
definition of "Mortgage File", with evidence of recording thereon, for any other
reason, including, without limitation, that such non-delivered document or
instrument has been lost, the delivery requirements of this Section 2.4(b) shall
be deemed to have been satisfied as to such non-delivered document or instrument
and such non-delivered document or instrument shall be deemed to have been
included in the Mortgage File, provided that a photocopy of such non-delivered
document or instrument (with evidence of recording thereon and certified in the
case of the documents and/or instruments referred to in clause (ii) of Section
2.4(a) by the appropriate county recorder's office to be a true and complete
copy of the original thereof submitted for recording) is delivered to the
Purchaser, the Trustee or a Custodian appointed thereby on or before the Closing
Date together with an affidavit certifying that the original thereof has been
lost or destroyed. With respect to any Mortgage Loan, and notwithstanding the
8
foregoing or Section 2.4(a), the Mortgage Loan Seller may deliver a UCC-3 on or
before the Closing Date that does not contain the filing information for the
related UCC-1 and/or UCC-2 if such UCC-1 and/or UCC-2 has not been returned to
the Mortgage Loan Seller by the applicable filing office, and the Mortgage Loan
Seller may deliver an assignment referred to in clauses (iii), (v) or (vii) of
Section 2.4(a) that does not contain the recording information for the related
Mortgage, Assignment of Leases or Security Agreement, as applicable, if such
Mortgage, Assignment of Leases or Security Agreement has not been returned to
the Mortgage Loan Seller by the applicable recording office. The Mortgage Loan
Seller hereby authorizes the Purchaser, acting in its stead and on its behalf,
to fill in any missing filing or recording information or any instrument or
document required to be delivered pursuant to this subsection (b).
(c) Except under the circumstances provided for in the last
sentence of this subsection (c), the Mortgage Loan Seller shall as to each
Mortgage Loan, promptly (and in any event within 30 days of the later of the
Closing Date and the Purchaser's and Trustee's actual receipt of the related
documents) cause the related documents to be delivered to the Trustee in
recordable form for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, as
appropriate, each assignment referred to in clauses (iii), (v) and (vii) of
Section 2.4(a) and each UCC-3 to the Trustee referred to in clause (xi) of
Section 2.4(a) as indicated in such assignment documents. Each such assignment
shall reflect that it should be returned by the public recording office to the
Trustee or its designee following recording, and each such UCC-3 shall reflect
that the file copy thereof should be returned to the Trustee or its designee
following filing. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Purchaser or an assignee thereof, which may include the Trustee or a Custodian
or its agent, shall prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter the Trustee shall upon
receipt thereof cause the same to be duly recorded or filed, as appropriate, all
at the Mortgage Loan Seller's expense. The Purchaser shall execute, or cause the
Mortgage Loan Seller to execute any replacement document or instrument being
filed in substitution for any such lost or returned unrecorded or unfiled
document or instrument at the Mortgage Loan Seller's expense and assist the
Purchaser, the Trustee or a Custodian or its agent in recording or filing such
documents or instruments. Notwithstanding the foregoing, there shall be no
requirement to record any assignment to the Trustee referred to in clause (iii),
(v) or (vii) of the Section 2.4(a), or to file any UCC-3 referred to in clause
(xi) of Section 2.4(a) in those jurisdictions where, in the written opinion of
local counsel of Purchaser, the Trustee or a Custodian acceptable to the
Purchaser and the Trustee, such recordation and/or filing is not required to
protect the Purchaser's or the Trustee's interest in the Mortgage Loans against
sale, further assignment, satisfaction or discharge by the Mortgage Loan Seller
or the Purchaser.
(d) All documents and records in the Mortgage Loan Seller's
possession relating to the Mortgage Loans (including financial statements,
operating statements and any other information provided by the respective
Mortgagor from time to time) or copies thereof, that are not required to be a
part of a Mortgage File in accordance with the definition thereof shall be
delivered to the Servicer on or before the Closing Date.
(e) Mortgage Loan Seller shall cause all funds on deposit in
escrow accounts maintained with respect to the Mortgage Loans in the name of the
Mortgage Loan Seller or any
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other name to be transferred to the Servicer promptly after the Closing Date,
but in all events within three (3) business days after the Closing Date.
2.5. Acceptance of Mortgage Loans. Within 90 days of the
Closing Date, the Purchaser or an assignee thereof, which may include the
Trustee or a Custodian on its behalf, shall complete a review of each of the
Mortgage Loan Documents delivered or caused to be delivered by the Mortgage Loan
Seller constituting the Mortgage Files and shall certify, as to each Mortgage
Loan, that (i) all documents required to be delivered pursuant to Section 2.4
are in its possession, (ii) such documents appear regular on their face and
relate to such Mortgage Loan, and (iii) based on the examinations referred to in
this Section 2.5 and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clauses (i), (ii)(a), (iv), (v), (vii) and (x)(c) of the definition of "Mortgage
Loan Schedule" set forth in the Pooling and Servicing Agreement is correct. If
the Purchaser or such assignee discovers or receives notice that any such
document described in the first or second preceding sentence is a Defective
Document Mortgage Loan, the Mortgage Loan Seller shall correct or cure any such
omission or defect or repurchase such Defective Document Mortgage Loan in
accordance with Section 3.3 of this Agreement.
[End of Article II]
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ARTICLE III.
REPRESENTATIONS, WARRANTIES AND COVENANTS;
REPURCHASE OF DEFECTIVE MORTGAGE LOANS
3.1. Representations and Warranties of the Purchaser.
(a) The Purchaser hereby represents and warrants that on the
Closing Date:
(i) Purchaser Duly Formed and Authorized. The
Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware,
and the Purchaser has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all the transactions
contemplated hereby, including, but not limited to, the power
and authority to purchase and acquire the Mortgage Loans in
accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by
each other party hereto, this Agreement and all of the
obligations of the Purchaser hereunder are the legal, valid
and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with the terms of this Agreement,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
(iii) No Conflict with Law or Agreements. The
execution and delivery of this Agreement and the performance
by the Purchaser of its obligations hereunder will not
conflict with any provisions of any law or regulations to
which the Purchaser is subject, or conflict with, result in a
breach of or constitute a default under any of the terms,
conditions or provisions of the certificate of incorporation
or the by-laws of the Purchaser or any indenture, agreement or
instrument to which the Purchaser is a party or by which it is
bound, or any order or decree applicable to the Purchaser, or
result in the creation or imposition of any lien on any of the
Purchaser's assets or property, which would materially and
adversely affect the ability of the Purchaser to carry out the
transactions contemplated by this Agreement; the Purchaser has
obtained any consent, approval, authorization or order of any
court or governmental agency or body required for the
execution, delivery and performance by the Purchaser of this
Agreement;
(iv) No Proceedings. There is no action, suit or
proceeding pending or, to the Purchaser's knowledge,
threatened against the Purchaser in any court or by or before
any other governmental agency or instrumentality which would
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materially and adversely affect the validity of the Mortgage
Loans or the ability of the Purchaser to carry out the
transactions contemplated by this Agreement.
3.2. Representations and Warranties of the Mortgage Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants
with respect to itself that, as of the Closing Date that:
(i) Seller Duly Formed and Authorized. The Mortgage Loan
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, and the Mortgage Loan
Seller has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(ii) Legal and Binding Obligations. Assuming the due
authorization, execution and delivery of this Agreement by each other
party hereto, this Agreement and all of the obligations of the Mortgage
Loan Seller hereunder are the legal, valid and binding obligations of
the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller
in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(iii) No Conflict with Law or Agreements. The execution and
delivery of this Agreement and the performance by the Mortgage Loan
Seller of its obligations hereunder will not conflict with any
provisions of any law or regulations to which the Mortgage Loan Seller
is subject, or conflict with, result in a breach of or constitute a
default under any of the terms, conditions or provisions of the
certificate of incorporation or the by-laws of the Mortgage Loan Seller
or any indenture, agreement or instrument to which the Mortgage Loan
Seller is a party or by which it is bound, or any order or decree
applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or
property, which would materially and adversely affect the ability of
the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement; the Mortgage Loan Seller has obtained any consent,
approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the
Mortgage Loan Seller of this Agreement;
(iv) No Proceedings. There is no action, suit or proceeding
pending or, to the Mortgage Loan Seller's knowledge, threatened against
the Mortgage Loan Seller in any court or by or before any other
governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of
the Mortgage Loan Seller to carry out the transactions contemplated by
this Agreement;
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(v) Mortgage Files in Possession. The Mortgage Loan Seller or
its agent is in possession of a Mortgage File with respect to each
Mortgage Loan identified on the Mortgage Loan Schedule and each such
Mortgage File will be transferred to the Purchaser or the Trustee as
its designee. The Mortgage Loan Seller has not withheld any material
information with respect to the Mortgage File;
(vi) No Material Default. The Mortgage Loan Seller is not in
default in the performance of any obligations, covenants or conditions
contained in any material agreement or instrument to which it is party,
which default might have consequences that would materially and
adversely affect the financial conditions or operations of the Mortgage
Loan Seller or its properties taken as a whole or would have
consequences that would materially and adversely affect its performance
hereunder;
(b) Representations and Warranties as to the Mortgage Loans.
The Mortgage Loan Seller hereby represents and warrants with respect to each
Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Cut-off Date:
(i) Mortgage Loan Schedule. The Mortgage Loan Schedule is
true, complete and accurate in all material respects
as of June 1, 1999.
(ii) Representations and Warranties Remain True. The
Mortgage Loan Seller has not taken any action that
would cause the representations and warranties made
by each Mortgagor under the related Mortgage Loan not
to be true. The Mortgage Loan Seller has no knowledge
that the material representations and warranties made
by the Mortgagor in each Mortgage Loan are not true
in any material respect.
(iii) No Fraudulent Acts by Mortgage Loan Seller,
Originator or Mortgagor. (A) Neither the Mortgage
Loan Seller, nor, to the Mortgage Loan Seller's best
knowledge, (1) any originator other than the Mortgage
Loan Seller or (2) the Mortgagor, committed any
fraudulent acts during the origination process of any
Mortgage Loan, other than the Earn-out Loans, (B)
with respect to each Mortgage Loan that Mortgage Loan
Seller originated (other than the Earn-out Loans) the
origination of such Mortgage Loan is in all material
respects legal, proper and prudent in accordance with
customary industry standards utilized by prudent
institutional and commercial mortgage lenders and (C)
to the best of the Mortgage Loan Seller's knowledge,
(1) the origination of each Mortgage Loan purchased
by the Mortgage Loan Seller and (2) the servicing and
collection of each Mortgage Loan is in all material
respects legal, proper and prudent in accordance with
customary industry standards utilized by prudent
institutional and commercial mortgage lenders or loan
servicers as appropriate.
(iv) Mortgage Loan Seller's Title to Mortgage Loans.
Immediately prior to the sale of the Mortgage Loan to
the Depositor, the Mortgage Loan Seller had good and
marketable title to and was the sole owner and holder
of each
13
Mortgage Loan, and the assignment validly transferred
its ownership of the Mortgage Loan, free and clear of
any and all liens, pledges and other encumbrances
(other than the Mortgage Loan Seller's obligation to
repurchase defective Mortgage Loans), subject to
exceptions of the type set forth in item (xlv) below.
(v) No Delinquency. No monthly payment of principal of or
interest on any Mortgage Loan has been more than 30
days delinquent since origination and as of the
Cut-off Date for such Mortgage Loan, no monthly
payment of principal of or interest on such Mortgage
Loan is 30 or more days delinquent.
(vi) No Default. There is no material default, breach,
violation or event of acceleration existing under the
related Mortgage or Mortgage Note, and to the
Mortgage Loan Seller's knowledge, there is 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 such a default, breach, violation or event
of acceleration.
(vii) No Modification or Release. Since origination, such
Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded, with
the exception of any modification, alteration,
satisfaction, cancellation, subordination or
recission specifically disclosed in a written
instrument that (A) was entered into prior to the
Cut-off Date, (B) has been recorded in the applicable
public recording office if necessary to maintain the
priority of the lien of the related Mortgage and
related Security Agreements, if any, and (C) is being
delivered to the Trustee or Custodian as part of the
related Mortgage File. No material portion of the
related Mortgaged Property has been released from the
lien of the related Mortgage, in each case, 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. None of the related Mortgages contains
terms which provide for or require release of any
portion of the related Mortgaged Property from the
lien of the Mortgage in any manner which materially
and adversely affects the adequacy of the security
provided by the Mortgaged Property.
(viii) No Insolvency. To the knowledge of the Mortgage Loan
Seller, neither the Mortgagor nor any guarantor is a
debtor in any state or federal bankruptcy or
insolvency proceeding or any regulatory proceeding.
(ix) No Proceedings. To the knowledge of the Mortgage Loan
Seller, as of the Closing Date, there is no pending
action, suit or proceeding, arbitration or
governmental investigation against a Mortgagor or
Mortgaged Property, an adverse outcome of which would
materially and adversely affect such Mortgagor's
ability to perform under the related Mortgage Loan.
14
(x) Single-Purpose Borrower. Except as set forth on
Exhibit D attached hereto, (A) the Mortgage Loan
Documents executed in connection with each Mortgage
Loan require that the related Mortgagor be a
single-purpose entity, (B) the Mortgage Loan Seller
has not waived such covenants and has no knowledge
that the Mortgagor is not in compliance therewith,
(C) with respect to each Mortgage Loan with a Cut-off
Date balance greater than 1% of the Initial Pool
Balance the related Mortgagor is a single purpose
entity and (D) the Mortgagor is organized under the
laws of a state, territory or district of the United
States. For purposes of this representation,
"single-purpose entity" shall mean an entity, other
than an individual, the organizational documents of
which limit its purpose to owning and operating a
single property or group of properties, does not
engage in any business unrelated to such property and
its financing, and does not have any assets other
than those related to its interest in the related
Mortgaged Property or its financing, or any
indebtedness other than as permitted under the
related Mortgage Loan.
(xi) Mortgagor Is The Sole Owner of Interest in Lease
Payments. Except as set forth in Exhibit D, no person
other than the Mortgagor owns any interest in any
payments due under the leases relating to the
Mortgaged Property that is superior to or of equal
priority with the Mortgage Loan Seller's interest
therein.
(xii) Defeasance; No REMIC Disqualification. With respect
to any Mortgage Loan that pursuant to the Mortgage
Loan Documents can be defeased, (A) the Mortgage Loan
cannot be defeased within two years of the Closing
Date, (B) the Mortgagor can pledge only United States
government securities (within the meaning of section
2(a)(16) of the Investment Company Act of 1940) as
the substitute collateral and (C) the Mortgagor can
be required by the Master Servicer to establish that
the release of the lien is to facilitate the
disposition of the Mortgaged Property or is in
connection with some other customary commercial
transaction and not as part of an arrangement to
collateralize a REMIC offering with obligations that
are not real estate mortgages.
(xiii) REMIC Qualification. 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 Regulation ss.1.860G-2(f)(2) that
treats a defective obligation as a "qualified
mortgage" or any substantially similar successor
provision) and any and all Prepayment Premiums and
Yield Maintenance Charges constitute "customary
prepayment penalties" within the meaning of Treasury
Regulation ss.1.860G-1(b)(2).
(xiv) Existing Indebtedness. Except as set forth on Exhibit
D, there are no subordinate or pari passu Mortgages
encumbering the related Mortgaged Property, no
preferred equity interests held by the Mortgage Loan
Seller or mezzanine debt related to such Mortgaged
Property.
15
(xv) No Additional Indebtedness. Except as set forth in
Exhibit D, each Mortgage Loan prohibits the related
Mortgagor from mortgaging or otherwise encumbering
the Mortgaged Property and from carrying any
additional indebtedness except in connection with (A)
trade debt and equipment financings in the ordinary
course of Mortgagor's business and (B) liens arising
by operation of law that are contested in accordance
with the terms of the Mortgage Loan.
(xvi) Annual Reports. Each Mortgage Loan requires the
related Mortgagor to provide annual operating
statements, rent rolls, and other information that
the holder of the Mortgage Loan may reasonably
request in connection with the related Mortgagor and
the related Mortgaged Property.
(xvii) Proceeds Fully Disbursed. The proceeds of each
Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder and the
Mortgage Loan Seller covenants that it will not make
any future advances under the Mortgage Loan to the
related Mortgagor. No advance of funds has been made
by the Mortgage Loan Seller , any affiliate or any
third party originator to the related Mortgagor
(other than mezzanine debt that is set forth on
Exhibit G) and no funds have been received from or on
behalf of any person other than the related Mortgagor
for, or on account of, payments due on the Mortgage
Loan.
(xviii) No Negative Amortization. Other than the ARD Loans,
which may have negative amortization from and after
their respective Anticipated Repayment Dates, no
Mortgage Loan provides for a shared appreciation or
equity participation feature, any other contingent or
additional interest feature or the negative
amortization of interest.
(xix) Whole Loan. Each Mortgage Loan is a whole loan.
Neither Mortgage Loan Seller nor any affiliate
thereof has any obligation to make any capital
contributions to any Mortgagor under a Mortgage Loan
other than contributions made on or prior to the
closing date.
(xx) Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any mortgage loan that is
not included in the Trust.
(xxi) Conditions for Releases of Mortgaged Property. Except
in connection with Mortgage Loans that are
cross-collateralized and Mortgage Loans that are
secured by more than one Mortgaged Property, no
Mortgage Loan requires the Mortgage Loan Seller to
release any portion of the related Mortgaged Property
from the lien of the related Mortgage except upon (A)
payment in full of all amounts due under the related
Mortgage Loan, (B) releases of unimproved
out-parcels, (C) releases of portions of the
Mortgaged Property that will not have a material
adverse effect on the adequacy of the remaining
collateral for the related Mortgage Loan or (D)
16
substitution of government securities for such
Mortgaged Property in a defeasance complying with
Treasury Regulationsss.1.860G-2(a)(8).
(xxii) Documents Valid. Each related Mortgage Note,
Mortgage, Assignment of Leases (if any) and other
agreement executed in connection with each Mortgage
Loan is the legal, valid and binding obligation of
the related Mortgagor, enforceable in accordance with
its terms, except as such enforcement may be limited
by applicable 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).
(xxiii) Assignments of Leases Create First Priority Security
Interest. Unless the related Mortgaged Property is
owner occupied, the Mortgage File for such Mortgage
Loan contains an Assignment of Leases, either as a
separate instrument or incorporated into the related
Mortgage, which creates in favor of the holder
thereof a valid, collateral or first priority
assignment of, or a valid first priority security
interest in, certain rights under the related leases,
subject only to a license granted to the related
Mortgagor to exercise certain rights and to perform
certain obligations of the lessor under such leases,
including the right to operate the related Mortgaged
Property. Each related assignment of Mortgage from
the Mortgage Loan Seller to the Trustee and any
related reassignment of Assignment of Leases, if any,
or assignment of any other agreement executed in
connection with each Mortgage Loan, from the Mortgage
Loan Seller to the Purchaser (or the Trustee as its
assignee) constitutes the legal, valid, binding and
enforceable assignment from the Mortgage Loan Seller
to the Purchaser (or the Trustee as its assignee)
except 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).
(xxiv) Mortgages and Security Agreements Create First Lien.
Each Mortgage is a valid and enforceable first lien
on the related Mortgaged Property subject only to (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
related Mortgagor's ability to pay its obligations
when they become due or the value of the Mortgaged
Property and (C) the exclusions and exceptions
(general and specific) set forth in a lender's title
insurance policy, none of which, individually or in
the aggregate, materially interferes with the
17
current use of the related Mortgaged Property or
materially interferes with the security intended to
be provided by such Mortgage or with the related
Mortgagor's ability to pay its obligations when they
become due or the value of the Mortgaged Property. As
of the date of origination of such Mortgage Loan and
as of the Closing Date, such Mortgaged Property is
free and clear of any mechanics' and materialmen's
liens which are prior to or equal with the lien of
the related Mortgage, except those which are insured
against by a lender's title insurance policy or are
referred to in the preceding sentence. Any Security
Agreement, chattel mortgage or equivalent document
related to and delivered in connection with the
Mortgage Loan establishes and creates a valid and
enforceable first lien on and first priority security
interest in the personal property described therein
(including hotel revenues with respect to a Mortgaged
Property that is operated as a hotel), except 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).
(xxv) No Defenses to Payment. The Mortgage Loan is not
subject to any right of rescission, set-off,
abatement, diminution, valid counterclaim or defense,
including the defense of usury, available to the
related Mortgagor with respect to such Mortgage Note,
Mortgage, Assignment of Leases and other agreements
with respect to any excess interest on an ARD Loan
after the related Anticipated Repayment Date and any
default interest, late charges, prepayment premiums,
yield maintenance charges.
(xxvi) Mortgage Loan Documents Comply With Law. The terms of
each of the Mortgage Loan Documents comply in all
material respects with all requirements of applicable
local, state or federal law.
(xxvii) Customary Provisions. Each related Mortgage contains
customary and enforceable (subject to bankruptcy,
insolvency, moratorium, redemption or other similar
laws affecting creditors' rights generally or by
general principles of equity) provisions so 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, and there is no exemption
available to the Mortgagor which would interfere with
such right to foreclose (except as may be imposed by
bankruptcy, insolvency, moratorium, redemption or
other similar laws affecting creditors' rights
generally or by general principles of equity).
(xxviii) Mortgagor's Interest in Mortgaged Property. The
interest of the related Mortgagor in the related
Mortgaged Property consists of a fee simple estate or
a leasehold estate in all of the real property
constituting a part of the Mortgaged Property.
18
(xxix) Recorded Instruments. Both the Mortgage and the
assignment of Mortgage for each Mortgage Loan have
been properly recorded in the applicable jurisdiction
and constitute the legal, valid and binding
assignment of such Mortgage Loan. The full amount of
the Mortgage has been recorded on each related
Mortgaged Property, and all applicable mortgage
recording taxes have been paid.
(xxx) UCC Financing Statements. A Form UCC-1 financing
statement has been submitted for filing or
recordation with respect to personal property
constituting a part of the related Mortgaged Property
as to which a security interest can be perfected by
filing (including hotel revenues with respect to a
Mortgaged Property that is operated as a hotel), and
a copy of each Form UCC-2 or UCC-3 assignment, if
any, of such financing statement executed by the
Mortgage Loan Seller in blank which the Trustee or
its designee is authorized to complete (and but for
the insertion of the name of the assignee and any
related filing information which is not yet available
to the Mortgage Loan Seller is in suitable form for
filing) and to file in the filing office in which
such financing statement was filed
(xxxi) Collateral. The Mortgage Note is not and has not been
secured by any collateral other than collateral
covered by the related Mortgage, the related
Assignment of Leases (if any) and any other agreement
executed in connection with the origination of the
Mortgage Loan.
(xxxii) Borrower's Licenses and Permits. As of the date of
origination of each Mortgage Loan, and, to the
Mortgage Loan Seller's knowledge, as of the Cut-off
Date, each related Mortgagor was in possession of all
material licenses, permits and other authorizations
necessary and required by all applicable laws for the
conduct of its business and all such licenses,
permits and authorizations were valid and in full
force and effect.
(xxxiii) No Usury Violation. The Mortgage Rate (exclusive of
any excess interest on an ARD Loan after the related
Anticipated Repayment Date and any Default Interest,
late charges, Prepayment Premiums and Yield
Maintenance Charges) of each Mortgage Loan complied
as of the date of origination with, or is exempt
from, applicable state or federal laws, regulations
and other requirements pertaining to usury; and any
and all other requirements of any federal, state or
local laws, including, without limitation,
truth-in-lending, real estate settlement procedures,
equal credit opportunity or disclosure laws,
applicable to each Mortgage Loan have been complied
with as of the date of origination of each Mortgage
Loan.
(xxxiv) Acceleration Provisions. 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 therein, is directly or
indirectly
19
transferred or sold (other than transfers for estate
planning purposes and other purposes where no change
of control occurs) or encumbered in connection with
subordinate financing (other than any indebtedness
described in clauses (xiv) and (xv) above) and each
related Mortgage or loan agreement prohibits the
pledge or encumbrance of the Mortgaged Property
without the consent of the holder of the Mortgage
Loan.
(xxxv) Non-Recourse Mortgage Loan. The Loan Documents for
each Mortgage Loan provide that such Mortgage Loan is
non-recourse to the related parties thereto except
for certain acts including the fraud, willful
misconduct or material misrepresentation by the
related Mortgagor and/or its affiliates, in which
case either (A) such Mortgage Loan shall become a
recourse obligation of the Mortgagor or another
person or (B) the Mortgagor shall assume personal
liability for any losses incurred by the Mortgage
Loan Seller or its assignee due to such acts.
Additionally, the Mortgage Loan Documents for each
Mortgage Loan provide that the related Mortgagor
thereunder shall be liable to the related Mortgage
Loan Seller for any losses incurred by the Mortgage
Loan Seller due to (1) the misapplication or
misappropriation of rents, insurance proceeds or
condemnation awards, (2) acts of waste and (3)
breaches of any environmental covenants contained in
the related Mortgage Loan Documents.
(xxxvi) Mortgages Secured by Deeds of Trust. To the knowledge
of the Mortgage Loan Seller, with respect to each
Mortgage which is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has
been properly designated and currently so serves and
is named in the deed of trust or has been substituted
in accordance with applicable law, and except in
connection with a trustee's sale after a default by
the related Mortgagor or in connection with the
release of the related Mortgaged Property, no fees
are or will become payable to such trustee.
(xxxvii) Escrows. All amounts required to have been deposited
by each Mortgagor under the Mortgage Loan Documents
have been deposited. All of the Mortgage Loan
Seller's interest in these amounts will be conveyed
to the trust. All requirements for escrows are
memorialized in one or more written agreements that
are contained within the Mortgage File for such
Mortgage Loan.
(xxxviii) Property Condition. To the Mortgage Loan Seller's
knowledge, based upon a site inspection conducted in
connection with the origination of the Mortgage Loan
and a review of the related engineering report, each
related Mortgaged Property is free and clear of any
material damage that would affect materially and
adversely the value of such Mortgaged Property as
security for the Mortgage Loan; the Mortgage Loan
Seller has received no actual notice of (A) any
proceeding pending for the total or partial
condemnation of such Mortgaged Property or (B) any
damage to
20
such Mortgaged Property that materially and adversely
affects the value of such Mortgaged Property.
(xxxix) No Delinquent Charges. There are no delinquent taxes,
ground rents, insurance premiums or assessments
(including, without limitation, assessments payable
in future installments or other similar outstanding
charges, water charges or sewer rents) affecting any
Mortgaged Property or such amounts, if existing and
in dispute, have been escrowed or covered by a letter
of credit. For purposes of this representation, an
obligation shall become "delinquent" on the date on
which both of the following conditions are satisfied:
(A) interest and/or penalties are due with respect to
the unpaid amount and (B) enforcement action can be
taken by the related taxing authorities.
(xl) No Encroachments. All improvements included in any
MAI appraisals are within the boundaries of the
related Mortgaged Property, with the exception of de
minimis encroachments, and the Mortgage Loan Seller
has obtained title insurance insuring against any
losses arising from such de minimis encroachments. No
improvements on adjoining properties encroach upon
any Mortgaged Property except for de minimis
encroachments or encroachments as to which the
Mortgage Loan Seller has obtained title insurance
coverage insuring against losses arising from such
encroachments.
(xli) Mortgaged Property Compliance with Zoning Laws Etc.
The improvements located on or forming part of each
Mortgaged Property materially comply with applicable
zoning and building laws, ordinances and regulations,
or constitute a legal non-conforming use or structure
or, if any such improvement does not so comply, such
non-compliance does not materially and adversely
affect the value of the related Mortgaged Property.
(xlii) Permanent Financing. The Mortgage Loan was not
originated for the purpose of financing the
construction of uncompleted improvements on the
related Mortgaged Property.
(xliii) Property Inspections. The Mortgage Loan Seller has
inspected or caused to be inspected each related
Mortgaged Property within the past twelve months.
(xliv) Access. Each Mortgaged Property is located on or
adjacent to a dedicated road, or has access to an
irrevocable easement permitting ingress and egress,
is served by public utilities and services generally
available in the surrounding community and otherwise
appropriate for the use in which the Mortgaged
Property is currently being utilized, and is a
separate tax parcel.
21
(xlv) First Priority Lien Insured. The lien of each related
Mortgage is a first priority lien on the fee or
leasehold interest of the related Mortgagor in the
original principal amount of the related Mortgage
Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in
the related Mortgage) and is insured by an ALTA
lender's title insurance policy or its equivalent (or
a binding commitment therefor), insuring the Mortgage
Loan Seller, its successors and assigns in the
original principal amount of the Mortgage Loan after
all advances of principal have been paid, subject
only to (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 when they become due or the value of
the Mortgaged Property and (C) the exclusions and
exceptions (general and specific) set forth in such
policy, none of which, individually or in the
aggregate, materially interferes with the current use
of the Mortgaged Property or materially interferes
with the security intended to be provided by such
Mortgage or with the related Mortgagor's ability to
pay its obligations when they become due or the value
of the Mortgaged Property. The premium for such
policy was paid in full; such policy was issued by a
title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is
located and is assignable to the Purchaser and the
Trustee without the consent of or any notification to
the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this
Agreement; no claims have been made under such policy
and the Mortgage Loan Seller has not undertaken any
action or omitted to take any action, and has no
knowledge of any such act or omission, which would
impair or diminish the coverage of such policy.
(xlvi) Environmental Matters. A Phase I environmental report
and with respect to certain Mortgage Loans, a Phase
II environmental report, was conducted by a reputable
environmental engineer in connection with such
Mortgage Loan, which report did not indicate any
material non-compliance or material existence of
hazardous material or, if any material non-compliance
or material existence of hazardous materials was
indicated in any such report, the remedial action
recommended to be taken in the report has been taken,
or funds sufficient to cover any recommended remedial
action have been escrowed by the related Mortgagor
and held by the Mortgage Loan Seller under the
related Mortgage or the Tenant under a Credit Tenant
Loan has the obligation to remedy such condition or
circumstance. To the best of the Mortgage Loan
Seller's knowledge, in reliance on such environmental
reports, each Mortgaged Property is in material
compliance with all applicable federal, state and
local laws
22
pertaining to environmental hazards other than as
disclosed in such environmental reports, and to the
best of the Mortgage Loan Seller's knowledge, no
notice of violation of such laws has been issued by
any governmental agency or authority, except as
indicated in certain environmental reports or other
documents previously provided to the Rating Agencies;
the Mortgage Loan Seller has not taken any action
which would cause the Mortgaged Property not to be in
compliance with all federal, state and local laws
pertaining to environmental hazards. Each Mortgagor
represents and warrants in the related Mortgage Loan
Documents that except as set forth in certain
environmental reports and to the best of its
knowledge it has not used, caused or permitted to
exist and will not use, cause or permit to exist on
the related Mortgaged Property any hazardous
materials in any manner which violates federal, state
or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous
materials. Each Mortgagor (or an affiliate thereof)
has agreed to indemnify, defend and hold the Mortgage
Loan Seller and its successors and assigns harmless
from and against any and all losses, liabilities,
damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorney's
fees and costs) paid, incurred or suffered by, or
asserted against, any such party resulting from a
breach of environmental representations, warranties
or covenants given by the Mortgagor in connection
with such Mortgage Loan.
(xlvii) Additional Insurance. Each Mortgage Loan requires
that the Mortgaged Property be covered by the
following insurance policies naming the Mortgagee and
its successors and assigns as additional insured, in
an amount at least equal to the lesser of the value
of the replacement cost of the related Mortgaged
Property or the principal balance of the related
Mortgage Loan, and sufficient to avoid the operation
of any co-insurance provisions: (A) fire and extended
perils (included within the classification "All Risk
of Physical Loss"), (B) 12 months of business
interruption or rental loss insurance, (C) flood
insurance if, based solely on a flood zone
certification or a survey of the related Mortgaged
Property, the property improvements are located in a
100-year flood plain, or if any portion of the
improvements on the Mortgaged Property is located in
a federally designated flood area "A" and (D)
comprehensive general liability insurance in amounts
generally required by institutional lenders for
similar properties. All premiums on such insurance
policies required to be paid as of the Cut-off Date
have been paid; such insurance policies may not be
terminated or cancelled without 30 days prior written
notice to the insured (for defaults other than
non-payment, for which there is a minimum of 10 days
written notice of cancellation) and no such notice
has been received by the insured. The insurance
provider of each such insurance policy has an A.M.
Best's rating of at least "A:X" or a claims paying
ability rating of
23
at least "A" from Standard & Poor's or its
equivalent. Other than the Credit Tenant Loans, each
related Mortgage Loan obligates the related Mortgagor
to maintain all such insurance and, at such
Mortgagor's failure to do so, authorizes the
mortgagee to maintain such insurance at the
Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor.
(xlviii) Application of Insurance and Condemnation Proceeds.
Any insurance proceeds in respect of a casualty loss
or taking, will be applied either to (A) the repair
or restoration of all or part of the related
Mortgaged Property or (B) to the payment of the
outstanding principal balance of such Mortgage Loan
together with any accrued interest thereon, except
that in the case of a ground-leased property casualty
and condemnation proceeds are required to be paid
first to the owner of the fee interest in the related
property in accordance with terms of the related
ground lease and then in accordance with the related
Mortgage.
(xlix) Terms of Mortgage. The Mortgage Loan is directly
secured by a Mortgage on a commercial, industrial,
self-storage, health-care related, hospitality,
mobile home park or multifamily residential property,
and either (A) substantially all of the proceeds of
the Mortgage Loan were used to acquire, improve or
protect an interest in such real property which, as
of the origination date, was the sole security for
such Mortgage Loan (unless the Mortgage Loan has been
modified in a manner that constituted a deemed
exchange under Section 1001 of the Code at a time
when the Mortgage Loan was not in default or default
with respect thereto was not reasonably foreseeable)
or (B) the fair market value of such real property
was at least equal to 80% of the principal amount of
the Mortgage Loan (1) at origination (or if the
Mortgage Loan has been modified in a manner that
constituted a deemed exchange under Section 1001 of
the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not
reasonably foreseeable, the date of the last such
modification) or (2) at the Closing Date; provided
that the fair market value of the real property
interest must first be reduced by (I) the amount of
any lien on the real property interest that is senior
to the Mortgage Loan (unless such senior lien also
secures a Mortgage Loan, in which event the
computation described in clauses (1) and (2) shall be
made on an aggregate basis) and (II) a proportionate
amount of any lien that is in parity with the
Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such
Mortgage Loan, in which event the computation
described in clauses (B)(1) and (B)(2) shall be made
on an aggregate basis.
(l) Appraisal. The Mortgage File contains an appraisal of
the related Mortgaged Property, which appraisal is
signed by a qualified appraiser, who, to the best of
the Mortgage Loan Seller's knowledge, had no
interest, direct or indirect, in the Mortgaged
Property or the Mortgagor or in any
24
loan made on the security thereof, and whose
compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal and
appraiser both satisfy the requirements of the
"Uniform Standards of Professional Appraisal
Practice" as adopted by the Appraisal Standards Board
of the Appraisal Foundation, all as in effect on the
date the Mortgage Loan was originated.
(li) Credit Tenant Loans. With respect to each Mortgage
Loan which is identified as a Credit Tenant Loan on
Exhibit F attached hereto:
(A) the base rental payments under each Credit Lease
are equal to or greater than the payments due
under the Mortgage Loan Documents executed in
connection with the related Credit Tenant Loan
and are payable without notice or demand, and
without setoff, counterclaim, recoupment,
abatement, reduction or defense and, subject to
the rights of the Tenant to terminate the Credit
Lease or offset, xxxxx, suspend or otherwise
diminish any amounts payable by the Tenant under
the Credit Lease;
(B) except as set forth in Exhibit D, either (1) the
obligations of the Tenant under each Credit
Lease, including, but not limited to, the
obligation of the Tenant to pay fixed and
additional rent, are not affected by reason of
any damage to or destruction of any portion of
the related Credit Tenant Property; any taking
of such Credit Tenant Property or any part
thereof , by condemnation or otherwise or any
prohibition, limitation, interruption,
cessation, restriction, prevention or
interference of the Tenant's use, occupancy or
enjoyment of such Credit Tenant Property, (2)
with respect to each Credit Lease listed on
Schedule I hereto, a Lease Enhancement Policy
has been obtained or (3) with respect to
condemnation, the Tenant is required to make a
rejectable purchase offer for a purchase price
that is greater than the then outstanding
principal balance secured by the Mortgage;
(C) every obligation associated with managing,
owning, developing and operating the Credit
Tenant Property, including, but not limited to,
the costs associated with utilities, taxes,
insurance, capital and structural improvements,
maintenance and repairs is an obligation of the
Tenant;
(D) no Mortgagor has any monetary obligations under
any Credit Lease that have not been met, or any
material nonmonetary obligations under any Credit
Lease the breach of which would result in either
the abatement of rent, a right of setoff or the
termination of the related Credit Lease;
(E) except as set forth in Exhibit D, no Tenant can
terminate any Credit Lease for any reason
(except for a default by the related Mortgagor
under the Credit Lease) prior to the payment in
full of (1) the principal
25
balance of the related Credit Tenant Loan, (2)
all accrued and unpaid interest on such Credit
Tenant Loan and (3) any other sums due and
payable under such Credit Tenant Loan or, if a
Tenant can terminate any Credit Lease as a
result of a casualty or condemnation, a Lease
Enhancement Policy has been obtained; or if a
Tenant can terminate the Credit Lease with
respect to a condemnation, the Tenant must make
a rejectable purchase offer for a purchase price
that is greater than the then outstanding
principal balance secured by the Mortgage;
(F) if a Tenant assigns its Credit Lease or sublets
the related Credit Tenant Property, such Tenant
remains primarily obligated under such Credit
Lease;
(G) each Tenant has agreed to indemnify the related
landlord from any claims of any nature (1) to
which such landlord is subject because of such
landlord's estate in the leased property or (2)
arising from (I) injury to or death of any
person or damage to or loss of property on the
related Credit Tenant Property or connected with
the use, condition or occupancy of the related
Credit Tenant Property, (II) Tenant's violation
of the related Credit Lease, (III) any act or
omission of Tenant or (IV) any environmental or
hazardous material affecting the property
created by the Tenant;
(H) if the obligations of the Tenant under any Credit
Lease are guaranteed by a guarantor pursuant to a
guaranty, the guaranty states that it represents
the unconditional obligation of the guarantor and
is a guarantee of payment, not merely of
collection;
(I) to the Mortgage Loan Seller's knowledge, each
Credit Lease contains customary and enforceable
provisions which render the rights and remedies
of the lessor thereunder adequate for the
enforcement and satisfaction of the lessor's
rights thereunder;
(J) to the Mortgage Loan Seller's knowledge, in
reliance on a Tenant estoppel certificate and
representations made by the Tenant under the
Credit Lease or representations made by the
related Mortgagor under the Loan Documents, as
of the date of origination of each Credit Tenant
Loan (1) each Credit Lease was in full force and
effect, and no default by the related Mortgagor
or any Tenant has occurred under the Credit
Lease, nor is there any existing condition
which, but for the passage of time or the giving
of notice, or both, would result in a default
under the terms of the Credit Lease, (2) none of
the terms of the related Credit Lease have been
impaired, waived, altered or modified in any
respect (except as described in the related
Tenant estoppel), (3) no Tenant has been
released, in whole or in part, from its
obligations under the related Credit Lease, (4)
there is no right of rescission, offset,
abatement, diminution, defense or counterclaim to
26
any Credit Lease, nor will the operation of any
of the terms of any Credit Lease, or the exercise
of any rights thereunder, render the Credit Lease
unenforceable in whole or in part, or subject it
to any right of rescission, offset, abatement,
diminution, defense or counterclaim and no such
right of rescission, offset, abatement,
diminution, defense or counterclaim has been
asserted with respect thereto and (5) each Credit
Lease has a term ending on or after the Maturity
Date (or Anticipated Repayment Date) of the
related Credit Tenant Loan;
(K) to the Mortgage Loan Seller's knowledge, the
related Credit Tenant Property is not subject to
any lease other than the related Credit Lease, no
Person has any possessory interest in, or right
to occupy, the such Credit Tenant Property except
under and pursuant to such Credit Lease, and the
related Credit Tenant or an affiliate is in
occupancy of the such Credit Tenant Property;
(L) the Mortgage Loan Seller is entitled to notice of
any event of default from the Tenant under a
Credit Lease;
(M) each Tenant under a Credit Lease is required to
make all rental payments directly to the Mortgage
Loan Seller, its successors and assignees under
the related Credit Tenant Loan;
(N) each Credit Tenant Loan provides that the related
Credit Lease cannot be modified without the
consent of the holder of the Mortgage Loan
thereunder;
(O) either (1) each Credit Tenant Loan fully
amortizes over its original term and there is no
"balloon" payment due under the Credit Tenant
Loan or (2) a Residual Value Policy has been
obtained with respect to such Credit Tenant Loan;
(P) the related Credit Tenant Property has a
permanent certificate of occupancy (or its
equivalent in jurisdictions that do not provide
for the issuance of certificates of occupancy)
and the Tenant has commenced making lease
payments.
(Q) each Tenant has delivered an estoppel verifying
the rents and terms of the related lease,
acknowledging that no rent has been paid in
advance, and an estoppel and/or a subordination
and nondisturbance agreement agreeing to attorn
to the holder of the Mortgage Loan.
(lii) Residual Value and Lease Enhancement Insurance Policy
With Respect to Credit Tenant Loans. With respect to
any Credit Tenant Loan for which a Residual Value
Policy or a Lease Enhancement Policy (collectively,
the
27
"Policies") has been obtained, and which are
identified on Exhibit D attached hereto:
(A) Each Credit Tenant Loan in connection with which
the related Credit Lease may be terminated upon
the occurrence of a casualty or condemnation has
a noncancellable Lease Enhancement Policy from
Chubb Custom Insurance Company ("Chubb") or
Lexington Insurance Company ("Lexington"). The
Chubb Lease Enhancement Policy in effect for each
related Credit Tenant Loan is the "7/98" version.
The Lexington Lease Enhancement Policy in effect
for each related Credit Tenant Loan was issued in
1998 and the policy number is 63241(4-95).
(B) Each Credit Tenant Loan in connection with which
the related Credit Lease will have a balloon
payment due at maturity has a non-cancellable
Residual Value Policy, from R.V.I. American
Insurance Company ("RVI") or Financial Structures
Limited ("FSL"). The RVI Residual Value Policy in
effect for each related Credit Tenant Loan is the
"Single 1.1" policy and the FSL Residual Value
Policy in effect for each related Credit Tenant
Loan was issued in 1998.
(C) The Trustee and its assigns are designated as the
loss payee under each related Policy. All claims
proceeds are payable to the loss payee.
(D) Payment under each Policy will be made at least
within 15 days of notification of a claim.
(E) The premium for each Policy has been paid in full
as of the Policy effective date for the related
Policy and the Policy cannot be terminated prior
to the termination date.
(F) The effective date for each Policy with respect
to each Credit Tenant Loan is on or prior to the
Closing Date.
(G) The termination date for each Policy with respect
to each Credit Tenant Loan is the date upon which
the outstanding principal balance of the Credit
Tenant Loan is reduced to zero.
(H) The insured amount for each such Policy is what
the applicable provider will pay to the loss
payee upon notification of a claim and is at
least equal to the outstanding principal balance
of the related Mortgage Note at the time the
claim is made plus all accrued interest.
(I) The Policy cannot be amended without the prior
written consent of the Trustee.
(liii) ARD Loans. If such Mortgage Loan is an ARD Loan it
provides that:
28
(A) Except as set forth in Exhibit D, its Mortgage
Rate will increase by no more than two percentage
points from and after its Anticipated Repayment
Date;
(B) its Anticipated Repayment Date is not less than
seven years following the origination of such
Mortgage Loan;
(C) either (a) on the Closing Date, each ARD Loan
will have a lockbox in place, or (b) no later
than the related Anticipated Repayment Date, if
it has not previously done so, the related
Mortgagor is required to enter into a "lockbox
agreement" whereby all revenue from the related
Mortgaged Property shall be deposited directly
into a designated account controlled by the
Servicer;
(D) any cash flow from the related Mortgaged Property
that is applied to amortize an ARD Loan following
its Anticipated Repayment Date shall, to the
extent such net cash flow is in excess of the
monthly payment payable therefrom, be net of
budgeted capital expenditures and capital
expenditures that may be approved by the Servicer
in accordance with the terms of the Pooling and
Servicing Agreement.
(E) each ARD Loan is being amortized as of the
Cut-off Date and is not currently subject to an
interest-only period;
(F) the holder of each ARD Loan may not exercise
default remedies if Mortgagor pays scheduled
principal and interest (at the related Mortgage
Rate);
(G) The property manager cannot be removed for the
sole reason that the ARD Loan continues to be
outstanding after its Anticipated Repayment Date.
(liv) Bondable Leases. With respect to each Credit Tenant
Loan identified on Exhibit F as being secured by a
Mortgaged Property with one or more Bondable Leases,
each Bondable Lease is subject to the following
conditions:
(A) The rental payments under the related Bondable
Lease are equal to or greater than the payments
due under the related Mortgage Note and Mortgage,
and are payable without notice or demand, and
without setoff, counterclaim recoupment,
abatement, reduction or defense.
(B) There is no right of rescission, offset,
abatement, diminution, defense or counterclaim to
any Bondable Lease, in whole or in part, and no
such right of rescission, offset, abatement,
diminution, defense or counterclaim has been
asserted with respect thereto;
29
(C) The obligations of the Tenant under the related
Bondable Lease, including, but not limited to,
the obligation of the Tenant to pay fixed and
additional rent, are not affected by reason of:
(w) any damage to or destruction of any portion
of the related Credit Tenant Property; (x) taking
of the related Credit Tenant Property or any part
thereof by condemnation or otherwise; (y) any
prohibition, limitation, interruption, cessation,
restriction, prevention or interference of the
Tenant's use, occupancy or enjoyment of the
related Credit Tenant Property or (z) with
respect to condemnation, the Tenant is required
to make a rejectable purchase offer for a
purchase price that is greater than the
outstanding principal balance of the Mortgage
Loan.
(D) The landlord does not have any monetary
obligations under the related Bondable Lease, and
every monetary obligation associated with the
managing, owning, developing and operating the
related Credit Tenant Property, including, but
not limited to, the costs associated with
utilities, taxes, insurance, maintenance and
repairs is an obligation of the Tenant.
(E) The landlord does not have nonmonetary obligation
xxxxxx the related lease, except for the delivery
of possession of the related leased property.
(F) The landlord has not made any representation or
warranty under the related lease that would
impose any monetary obligation upon the landlord
or result in the termination of the related
lease.
(G) The Tenant cannot terminate the related Bondable
Lease for any reason other than condemnation of
the related Mortgaged Property, prior to the
payment in full of:
(1) The principal balance of the
Mortgage Loan;
(2) All accrued and unpaid interest on
the Mortgage Loan; and
(3) Any other sums due and payable
under the Mortgage Loan, as of
termination date, which date is a
rent payment date, except for a
default by the landlord under the
related lease.
(H) The Tenant has agreed to indemnify the landlord
from any claims of any nature:
(1) To which the landlord is subject
because of the landlord's estate in
the related Credit Tenant Property,
or
(2) Arising from
30
(I) Injury to or death of any person or
damage to or loss of property on
the related leased property or
connected with the use, condition
or occupancy o the related leased
property,
(II) The Tenant's violation of the
related lease,
(III) Any act or omission of the Tenant
or
(IV) Any environmental or hazardous
material affecting the related
property.
(lv) Health Care Facilities. With respect to a Mortgage
Loan secured by a nursing home or skilled living
facility:
(A) To the best of the Mortgage Loan Seller's
knowledge, the health care facility located on
the related Mortgaged Property and the related
owner and/or operator with respect to such
facility had all material certificates, licenses
and permits required by applicable law for the
operation of such facility for its current use
and, to the extent that such facility
participates in Medicaid, Medicare, or any other
similar third party payor program, the facility,
the owner and/or the operator possesses current
provider agreements for such programs,
appropriate for the degree of care administered
at each facility.
(B) To the best of the Mortgage Loan Seller's
knowledge, the related owner or operator, with
respect to the related Mortgaged Property or its
operation of the related Mortgaged Property, was
in compliance in all material respects with all
applicable laws, regulations, quality and safety
standards and requirements of the applicable
state department of health, and the Mortgage Loan
Documents require that so long as the Mortgage
Loan remains outstanding the related Mortgaged
Property shall be operated in compliance in all
material respects with such applicable laws and
requirements.
(C) The related Mortgage Loan Documents provide that:
(1) so long as the Mortgage Loan remains
outstanding, the related Mortgaged
Property shall be operated in such a
manner that the licenses, permits and
authorizations shall remain in full
force and effect,
(2) without the lender's consent, the
licenses, permits and authorizations may
not be
(I) transferred to any location
other than the Mortgaged
Property
31
(II) pledged as collateral for any
other loan or indebtedness
(3) so long as the related Mortgage Loan
remains outstanding, the Mortgagor may
not without the lender's consent
(I) rescind, withdraw, revoke,
amend, modify, supplement or
otherwise alter the nature or
scope of the certificate of
need for the related Mortgaged
Property.
(II) amend or otherwise reduce the
related Mortgaged Property's
authorized bed capacity and/or
the number of beds approved by
the applicable state
department of health,
(III) replace or transfer all or any
part of any related Mortgaged
Property's beds to an other
site or location or
(IV) terminate, materially modify,
or materially amend the
operating lease or management
contract in effect with regard
to the related Mortgaged
Property.
(4) as of the Cut-off Date, the Mortgage
Loan Seller has not received notice that
the related owner or related operator as
the case may be, has failed to file
within the time permitted, including any
extensions thereof, all such Medicare,
Medicaid or other similar program cost
reports;
(5) except as set forth in Exhibit D, as of
the Cut-off Date, the Mortgage Loan
Seller has not received notice that
either the related owner or operator, as
the case may be, with respect to the
related Mortgaged Property, or its
operation of such Mortgaged Property,
(A) is subject to a material audit
adjustment with respect to its
participation in any third-party payor
program or (B) has not been notified
that any managed care or other
third-party payor program contract is
being or has been canceled, not renewed,
or downgraded in any material respect or
that any such action is pending,
threatened, or contemplated.
(lvi) Mortgage Loan Not Originated by Mortgage Loan Seller.
With respect to each Mortgage Loan originated by a
correspondent of the Mortgage Loan Seller and
purchased or "table funded" by the Mortgage Loan
Seller in connection with a correspondent
relationship with such originator:
32
(A) such Mortgage Loan was underwritten substantially
in accordance with standards established by the
Mortgage Loan Seller, (which standards are in all
material respects the same as the underwriting
standards for Mortgage Loans originated by the
Mortgage Loan Seller);
(B) the Mortgage Loan was originated by the Mortgage
Loan originator pursuant to an ongoing, standing
relationship with the Mortgage Loan Seller;
(C) the closing documents (which include assignment
documents executed by the Mortgage Loan
originator in favor of the Mortgage Loan Seller
at the time of the closing of the Mortgage Loan)
for the Mortgage Loan were prepared in
substantial compliance with forms approved by the
Mortgage Loan Seller, and reflect the Mortgage
Loan Seller as the successor and assign to the
Mortgage Loan originator; and
(D) such Mortgage Loan either was actually funded by
and assigned to the Mortgage Loan Seller at the
closing thereof, or was funded initially by the
Mortgage Loan originator at the closing thereof
and then acquired by the Mortgage Loan Seller
from such Mortgage Loan originator pursuant to
its ongoing, standing relationship with the
Mortgage Loan Seller.
(lvii) Origination. Each Mortgage Loan originated by the
Mortgage Loan Seller was underwritten consistent in
all material respects with the standards of the
Mortgage Loan Seller as then in effect and each
Mortgage Loan purchased by the Mortgage Loan Seller
from a third-party originator was underwritten
consistent in all material respects with prudent
commercial mortgage conduit lending standards.
(lviii) Waivers. The Mortgage Loan Seller and, to the
Mortgage Loan Seller's knowledge, any prior holder of
the Mortgage Loan has not waived any default, breach,
violation or event of acceleration under the related
Mortgage or Mortgage Note.
(lix) Qualification. To the extent required under
applicable law as of the Closing Date and necessary
for the enforceability or collectibility 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 held the Mortgage Loan.
3.3. Remedies for Breach of Certain Representations and
Warranties. (a) It is understood and agreed that the representations and
warranties set forth herein shall survive the sale of the Mortgage Loans to the
Purchaser, notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this Agreement or
the Pooling and Servicing Agreement, and shall inure to the benefit of the
33
Purchaser, and the Trustee as the transferee of the Purchaser, notwithstanding
(1) any restrictive or qualified endorsement on any Mortgage Note, assignment of
Mortgage, Assignment of Leases, Rents and Profits or reassignments thereof (2)
any termination of this Agreement or (3) the examination by any Person of, or
failure by any Person to examine, any Mortgage File. It is further understood
and agreed that the representations and warranties set forth in Section 3.2(b)
do not cover any mortgage loans sold to the Purchaser by any other Person.
(b) Upon the receipt of notice or discovery by the Mortgage
Loan Seller, the Purchaser or the Trustee that (i) a document required to be
delivered, recorded or filed pursuant to Section 2.4 of this Agreement in
connection with any Mortgage Loan has not been executed or received, has not
been recorded or filed (if required), appears not to be what it purports to be
or has been torn, mutilated or otherwise defaced prior to the delivery thereof
(such Mortgage Loan, a "Defective Document Mortgage Loan") or (ii) a breach of
any of the foregoing representations and warranties (other than the
representations and warranties set forth in Sections 3.1(a) and 3.2(a)) (a
"Breach") which, in the case of either clause (i) or (ii), materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the party discovering (x) that a Mortgage Loan is a
Defective Document Mortgage Loan or (y) the existence of a Breach (any such
Mortgage Loan as described in the preceding clause (x) or so affected by a
Breach as described in clause (y), a "Defective Mortgage Loan") shall give
prompt written notice thereof to the other parties. Within 90 days of the
earlier of its discovery or its receipt of notice of any such Defective Mortgage
Loan, the Mortgage Loan Seller shall at its option either (i) promptly cure such
defect or Breach in all material respects; provided, however, that the Mortgage
Loan Seller will have an additional 90-day period to cure such defect or Breach
if it is diligently proceeding with such cure, and has delivered to the Trustee,
the Servicer and each Rating Agency an officer's certificate with all relevant
correspondence and communication in the possession of the Mortgage Loan Seller
as of the date thereof relating to such Defect or Breach that describes the
reasons that a cure was not effected within the first 90-day cure period and the
actions it proposes to take to effect such cure and which states that it
anticipates such cure will be effected within the additional 90-day period or
(ii) repurchase each Defective Mortgage Loan at the Repurchase Price for such
Mortgage Loan. The payment of the Repurchase Price with respect to any Mortgage
Loans repurchased by the Mortgage Loan Seller shall be paid in accordance with
the directions of the owners of such Mortgage Loans. It is understood and agreed
that the obligations of the Mortgage Loan Seller set forth in this Section
3.3(b) to cure or repurchase a Defective Mortgage Loan constitute the sole
remedies available to the Purchaser and its successors and assigns respecting a
Defective Mortgage Loan. Upon any such repurchase of a Mortgage Loan by the
Mortgage Loan Seller, the Purchaser shall execute and deliver (or shall cause
the Trustee to execute and deliver) such instruments of transfer or assignment
presented to it by the Mortgage Loan Seller, in each case without recourse, as
shall be necessary to vest in the Mortgage Loan Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the
related rights under each agreement which were assigned pursuant to Section 3.7
hereof, and shall deliver the related Mortgage File to the Mortgage Loan Seller
or its designee after receipt of the related Repurchase Price.
(c) Except as expressly set forth in Section 3.3(b), no
provision of this Agreement shall be interpreted as limiting (or otherwise be
deemed to limit) the Purchaser's right
34
to pursue any remedies it may have under this Agreement, in equity or at law, in
connection with any breach by the Mortgage Loan Seller of any term hereof.
(d) The Mortgage Loan Seller hereby acknowledges the
assignment by the Purchaser to the Trustee, as trustee under the Pooling and
Servicing Agreement, for the benefit of the Certificateholders, of the
representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to cure or repurchase Defective Mortgage Loans pursuant to
this Section. The Trustee or its designee may enforce such obligation as
provided in Section 5.3 hereof.
(e) The Mortgage Loan Seller hereby acknowledges and agrees
that, pursuant to Section 2.03(e) of the Pooling and Servicing Agreement, the
Servicer and the Special Servicer (in the case of Specially Serviced Mortgage
Loans) have the right, for the benefit of the Certificateholders, to enforce the
obligations of the Mortgage Loan Seller under this Section 3.3. The Servicer and
the Special Servicer, as the case may be, shall be reimbursed for the reasonable
costs of such enforcement from a specific recovery of costs, expenses or
attorneys' fees against the applicable Mortgage Loan Seller first, from a
specific recovery of costs, expenses or attorneys' fees against the Mortgage
Loan Seller ordered or awarded pursuant to an adjudication and second, from the
Purchase Price (as defined in the Pooling and Servicing Agreement) in the manner
contemplated by Section 2.03(e) of the Pooling and Servicing Agreement.
3.4. Opinions of Counsel. The Mortgage Loan Seller hereby
covenants to the Purchaser to, simultaneously with the execution hereof, deliver
or cause to be delivered to the Purchaser (a) opinions of counsel as to various
corporate matters in form satisfactory to the Purchaser (it being agreed that
the opinion shall expressly provide that the Trustee and the Fiscal Agent shall
be entitled to rely on such opinions); and (b) opinions of counsel for the
Mortgage Loan Seller, in form acceptable to the Purchaser, its counsel, and each
Rating Agency, as to such matters as shall be required for the assignment of the
ratings of the Certificates and otherwise as required by the Certificate
Purchase Agreement and the Underwriting Agreement (it being agreed that such
opinions or appropriate reliance letters shall expressly provide that the
Trustee and the Fiscal Agent shall be entitled to rely on such opinions).
3.5. Underwriting. The Mortgage Loan Seller hereby agrees to
furnish any and all information, documents, certificates, letters or opinions
with respect to the Mortgage Loans reasonably requested by the Purchaser in
order to perform any of its obligations or satisfy any of the conditions on its
part to be performed or satisfied pursuant to the Certificate Purchase Agreement
and the Underwriting Agreement at or prior to the Closing Date.
3.6. Further Assurances; Securitization Cooperation. The
Mortgage Loan Seller agrees to execute and deliver such instruments and take
such actions as the Purchaser may, from time to time, reasonably request in
order to effectuate the purpose and to carry out the terms of this Agreement and
to effectuate the securitization of the Mortgage Loans pursuant to the Pooling
and Servicing Agreement and to carry out its obligations under the Pooling and
Servicing Agreement.
3.7 Assignment of Purchase Agreement. The Mortgage Loan Seller
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged,
35
hereby grants, sells, transfers, assigns, delivers, sets-over and conveys to the
Purchaser all the right, title and interest of the Mortgage Loan Seller in, to
and under the Mortgage Loans pursuant to each agreement between the Mortgage
Loan Seller and the originators of the Mortgage Loans (where such originators
are Persons other than the Mortgage Loan Seller) pursuant to which the Mortgage
Loan Seller acquired rights in such Mortgage Loan (which agreements are set
forth on Schedule I attached hereto), including, without limitation, all of the
Mortgage Loan Seller's right, title and interest in any claims, insurance
policies, escrow accounts, demands, causes of action and any other collateral
arising out of and/or executed and/or delivered in or to, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Mortgage Loans, without recourse, representation or
warranty except as set forth herein.
[End of Article III]
ARTICLE IV.
CLOSING CONDITIONS
4.1. Purchaser's Conditions to Closing. The obligations of the
Purchaser under this Agreement shall be subject to the satisfaction, on the
Closing Date, or such other date specified herein, of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the terms of this
Agreement shall have been duly performed and complied with and all of the
representations and warranties of the Mortgage Loan Seller under this Agreement
shall be true and correct as of the date hereof and as of the Closing Date, and
no event shall have occurred which, with notice or the passage of time, or both,
would constitute a default under this Agreement, and the Purchaser shall have
received a certificate to that effect signed by an authorized officer of the
Mortgage Loan Seller.
(b) The Purchaser or its designee shall have received all of
the following closing documents, in such forms as are agreed upon and acceptable
to the Purchaser and in form and substance satisfactory to the Purchaser, the
Underwriters and their respective counsel, duly executed (except in the case of
(i) and (ii)) by all signatories other than the Purchaser as required pursuant
to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage
File, which Mortgage File shall be delivered to and held by the Trustee
on behalf of the Purchaser;
(ii) the final Mortgage Loan Schedule attached hereto as
Exhibit A;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of , counsel to the Mortgage
-------------
Loan Seller, substantially in the form attached hereto as Exhibit C;
36
(v) such other opinions of counsel as the Mortgage Loan
Seller, the Depositor or the Underwriters may require;
(vi) the Supplemental Mortgage Loan Purchase and Sale
Agreement, dated as of June 1, 1999, by and between the Mortgage Loan
Seller and the Purchaser.
(vii) the PW Mortgage Loan Purchase and Sale Agreement, duly
executed and delivered.
(viii) such other documents, certificates and opinions as may
be necessary to secure for the Certificates the ratings from Xxxxx'x
Investors Services, Inc. ("Moody's") and Fitch IBCA, Inc. ("Fitch
IBCA") set forth in clause (ix) of this section 4.1(b);
(ix) Letters from Moody's and Fitch IBCA showing the following
ratings: for the Class A-1 Certificates, a "Aaa" rating from Xxxxx'x
and a "AAA" rating from Fitch IBCA; for the Class A-2 Certificates, a
"Aaa" rating from Xxxxx'x and a "AAA" rating from Fitch IBCA; for the
Class X Certificates, a "Aaa" rating from Xxxxx'x and a "AAA" rating
from Fitch IBCA; for the Class B Certificates, a "Aa2" rating from
Xxxxx'x and a "AA" rating from Fitch IBCA; for the Class C
Certificates, a "A2" rating from Xxxxx'x and a "A" rating from Fitch
IBCA; for the Class D Certificates, a "Baa2" rating from Moody's and a
"BBB" rating from Fitch IBCA; for the Class E Certificates, a "Baa3"
rating from Xxxxx'x and a "BBB-" rating from Fitch IBCA; for the Class
F Certificates, a "Ba2" rating from Moody's; for the Class G
Certificates, a "B2" rating from Moody's; for the Class H Certificates,
a "B3" rating from Moody's.
(x) a letter from the independent accounting firm of
PriceWaterhouseCoopers, LLC in form satisfactory to the Purchaser,
relating to certain information regarding the Mortgage Loans as set
forth in the Prospectus and the Prospectus Supplement and certain
information regarding the Certificates as set forth in the Prospectus
and the Prospectus Supplement.
4.2. Mortgage Loan Seller's Condition to Closing. The
obligations of the Mortgage Loan Seller under this Agreement shall be subject to
the satisfaction, on the Closing Date, to the Purchaser's compliance with all of
the Purchaser's obligations under this Agreement.
[End of Article IV]
37
ARTICLE V.
MISCELLANEOUS
5.1. Costs. (a) The Purchaser shall pay all expenses
incidental to the performance of its obligations under this Agreement, including
without limitation (i) fees for title policy endorsements and continuations or
any recordation expenses for all documents to be recorded, including without
limitation, the assignments of the Mortgages and the assignments of the
Assignments of Leases and any other documentation requested by the Purchaser as
further assurance of the transactions contemplated herein, (ii) the expenses of
preparing, printing and reproducing (A) the Memorandum with respect to the
Privately Placed Certificates and the Prospectus Supplement with respect to the
Publicly Offered Certificates, (B) the Purchase Agreement, (C) the Pooling and
Servicing Agreement and (D) the Certificates, (iii) the cost of delivering the
Privately Placed Certificates to the office of the Placement Agent or the
Purchaser, as applicable, insured to the satisfaction of the Placement Agent or
the Purchaser, as applicable and (iv) the cost of delivering the Publicly
Offered Certificates to the office of the Underwriter.
(b) The Mortgage Loan Seller shall pay or cause to be paid to
the Purchaser its Allocable Share of the Purchaser's out-of-pocket expenses
allocable to the Mortgage Loans, including, but not limited to the Purchaser's
attorneys' fees and expenses.
5.2. Indemnification and Contribution: (a) The Mortgage Loan
Seller shall indemnify and hold harmless the Purchaser, the directors, officers,
employees and agents of the Purchaser, and each person who controls the
Purchaser within the meaning of either the 1933 Act or the 1934 Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act, or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (in preliminary or
final form), or in any 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,
in the light of the circumstances under which they were made, not misleading,
but only to the extent such untrue statement, alleged untrue statement, omission
or alleged omission arises out of or is based upon any information provided by
or on behalf of the Mortgage Loan Seller to the Purchaser with respect to the
Mortgage Loans or itself (collectively, and as further described below, the
"Mortgage Loan Seller Information"), and the Mortgage Loan 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, provided, however,
that the Mortgage Loan Seller's agreement to indemnify and reimburse the
Underwriters, their respective officers and directors, or any person controlling
the Underwriters under this Section 5.2 shall not apply to any loss, claim,
damage, liability or expense arising out of or relating to claims asserted by
any person who purchased any registered Certificates pursuant to the Preliminary
Prospectus Supplement that are the subject of such claims if such person did not
receive a copy of the Prospectus Supplement upon or before settlement of the
sale or such registered Certificates to such Person, in any case where the
untrue statement or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact contained
38
in such Preliminary Prospectus Supplement which was the basis of any such claim
was corrected in the Prospectus Supplement and provided, further, that the
indemnification provided by this Section 5.2 shall not apply to the extent that
such untrue statement or omission was made as a result of an error in any
aggregation (other than an aggregation made by the Mortgage Loan Seller or an
aggregation contained in tabular information provided by the Mortgage Loan
Seller) of, the information regarding the Mortgage Loans, the related Mortgagor
and the related Mortgaged Properties with comparable information relating to
other mortgage loans conveyed by other mortgage loan sellers. This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have. For all purposes of this Agreement, and notwithstanding
anything herein contained to the contrary, the Mortgage Loan Seller Information
includes, and is limited to, (i) the representations and warranties of the
Mortgage Loan Seller set forth in Section 2 herein, (ii) summaries of the
individual Mortgage Loans and any letters, certifications and other materials
furnished to the Purchaser by the Mortgage Loan Seller relating to the Mortgage
Loans, (iii) reports of environmental assessments of the related Mortgaged
Properties, (iv) reports of site inspections of the related Mortgaged
Properties, (v) all information and documentation relating to the Mortgage Loans
and included in the investor and Rating Agencies due diligence files and any
documents or information relating to the Mortgage Loans and provided by the
Mortgage Loan Seller or any of its affiliates to potential investors, including
but not limited to Mortgage Loan legal, underwriting and servicing documents and
information, (vi) the information regarding the Mortgage Loans, property
managers and the Mortgage Loan Seller set forth in the Prospectus and in any
amendment thereof or supplement thereto, and (vii) any computer diskettes,
computer tapes and/or other electronic media containing (A) the information on
the Mortgage Loan Schedule, and (B) information regarding the Mortgage Loans
provided to the Depositor or any Underwriter and used in preparing Computational
Materials (as such term is defined in the no-action letter issued by the staff
of the Securities and Exchange Commission (the "SEC"), dated May 20, 1994 to
Xxxxxx, Peabody Acceptance Corporation I), Collateral Term Sheets, ABS Term
Sheets, and/or Structural Term Sheets (as such terms are defined in the
no-action letter issued by the SEC, dated February 17, 1995 to the Public
Securities Association.
(b) The Purchaser shall indemnify and hold harmless the
Mortgage Loan Seller, its directors, officers, employees and agents, and each
person, if any, who controls the Mortgage Loan Seller within the meaning of
either the 1933 Act or the 1934 Act, against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act, or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (in preliminary or final form), or in any 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 the such untrue
statement, alleged untrue statement, omission or alleged omission is based upon
the Mortgage Loan 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,
39
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 5.2, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party under this Section 5.2, except to the extent that it has been
prejudiced in any material respect, or from any liability which it may have,
otherwise than under this Section 5.2. 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 reasonably
satisfactory to such indemnified party; provided 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 which
are different from or additional to those available to the indemnifying party,
the indemnified party or parties 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 to such indemnified party for
expenses incurred by the 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 next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable), approved by
the Purchaser in the case of subsection (a), representing the indemnified
parties under subsection (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 in writing 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 be only in respect of the counsel referred
to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 5.2
shall for any reason be unavailable in accordance with its terms to an
indemnified party under this Section 5.2, then the Mortgage Loan Seller and the
Purchaser shall contribute to the amount paid or payable by such indemnified
party as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above, in such proportion as is appropriate to reflect (i)
the relative benefits received by the Mortgage Loan Seller on the one hand and
the Purchaser on the other from the purchase and sale of the Mortgage Loans and
the offering of the Certificates and (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as
40
is appropriate to reflect not only the relative benefits referred to in clause
(i) above, but also to reflect the relative fault of the Mortgage Loan Seller on
the one hand and the Purchaser on the other in connection with the statement or
omission that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Purchaser on the one hand and the Mortgage Loan Seller on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Certificates (before deducting expenses but net of underwriting
discounts and commissions) received by the Purchaser bear to the total net
proceeds received by the Mortgage Loan Seller with respect to the sale of the
Mortgage Loans (before deducting expenses). The relative fault 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 the Mortgage Loan Seller or
the Purchaser and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
Mortgage Loan Seller and the Purchaser agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were to be determined
by per capita allocation or by any other method of allocation that does not take
account of the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
action or claim which is the subject of this subsection (d) subject to the
limitations therein provided under subsection (c). 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 also guilty
of such fraudulent misrepresentation.
5.3. Third Party Beneficiaries; Survival. The representations,
warranties and agreements made by the Mortgage Loan Seller in this Agreement are
made for the benefit of, and may be enforced by or on behalf of, the Trustee and
the Holders of Certificates to the same extent that the Purchaser has rights
against the Mortgage Loan Seller under this Agreement in respect of
representations, warranties and agreements made by the Mortgage Loan Seller
herein, and all such representations and warranties shall survive delivery of
the Mortgage Files to the Trustee until the termination of the Pooling and
Servicing Agreement. Section 5.2 of this Agreement shall survive delivery of the
Mortgage Files to the Trustee and remain in full force and effect after the
termination or cancellation of this Agreement.
5.4. Successors and Assigns. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Section 5.3 hereof.
5.5. Governing Law. This Agreement will be governed by and
construed in accordance with the substantive laws of the State of New York
(without regard to conflicts of laws principles), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
5.6. Modifications. (a) Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
41
(b) This Agreement may not be changed in any manner which
would have a material adverse effect on Holders of Certificates without the
prior written consent of the Trustee. The Trustee shall be protected in
consenting to any such change to the same extent provided in the Pooling and
Servicing Agreement.
(c) This Agreement may be executed in any number of
counterparts, each of which shall, for all purposes, be deemed to be an original
and all of which shall together constitute but one and the same instrument.
5.7. Notices. All communications hereunder shall be in writing
and effective only upon receipt and, if sent to the Purchaser, will be mailed,
delivered or transmitted by facsimile and confirmed to it at PaineWebber
Mortgage Acceptance Corporation V, 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, telecopy number: (212)
713-8607, with a copy to O'Melveny & Xxxxx LLP, 000 X. 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx, Esq., telecopy number: (000) 000-0000;
or, if sent to the Mortgage Loan Seller, will be mailed, delivered or
transmitted by facsimile and confirmed to it at Xxxxxxx Xxxxx Mortgage Capital
Inc., 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Balkan, telecopy number: (000) 000-0000, with a copy to Xxxxxxx Xxxxx, 000 Xxxxx
Xxxxxx, World Financial Center, Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx XxXxxxxx, telecopy number (000) 000-0000.
5.8. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then, to the extent permitted by applicable law, such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
5.9. Confirmation of Intent. It is the express intent of the
parties hereto that the conveyance contemplated by this Agreement be, and be
treated for all purposes as, a sale by the Mortgage Loan Seller of all the
Mortgage Loan Seller's right, title and interest in and to the Mortgage Loans.
It is, further, not the intention of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Mortgage Loan Seller to secure a debt or
other obligation of the Mortgage Loan Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Mortgage Loan Seller then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Mortgage Loans provided for herein shall be deemed to be a grant
by the Mortgage Loan Seller to the Purchaser of a first priority security
interest in all of the Mortgage Loan 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; (c) the possession by the Purchaser or any successor thereto of
the related 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 New York Uniform Commercial Code and the Uniform
Commercial Code of any other applicable jurisdiction; and (d) notifications to
Persons holding such property, and acknowledgments, receipts or confirmations
42
from Persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to any provision hereof
shall also be deemed to be an assignment of any security interest created
hereby.
[Signature Pages Follow]
43
IN WITNESS WHEREOF, the Purchaser and the Mortgage Loan Seller
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
PAINEWEBBER MORTGAGE ACCEPTANCE
CORPORATION V
as Purchaser
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
S-1
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
as Mortgage Loan Seller
By: /s/ Xxxxxx Balkan
-----------------------------------
Name: Xxxxxx Balkan
Title: Director
S-2
EXHIBIT A
MORTGAGE LOAN SCHEDULE
LOAN
ID PROPERTY NAME PROPERTY TYPE ORIGINATOR ADDRESS
-----------------------------------------------------------------------------------------------------------------------------------
XX-000 Xxxxxx Xxxx Health Care Center Nursing Home MLMC 000 00xx Xxxxxx
XX-000 Xxxxxx Xxxxxxx Multifamily WMF 0000 Xxxx Xxxx
XX-000 Xxxxxxxxxx Health Care Center Nursing Home MLMC 000 00xx Xxxxxx
XX-000 Xxx Xxxxx Expansion Retail MLMC 0000 Xxxxxx Xxxxxx
XX-000 Xxxxxxxxxxx Xxxxxx Xxxx Xxxxxx XXXX 0000-0000 & 0000-0000
Xxxxxxxxxxx Xxxxx
ML-146 20th & Campbell Multifamily Chase 0000 Xxxx Xxxxxxxx Xxx.
ML-127 Riverbend Apartments Multifamily MLMC 000 Xxxxx Xxxx Xxxxx
XX-000 Xxxxxxxxxxx Multifamily Chase 0000 Xxxx Xxxx
ML-113 Windsor Station Apartments Multifamily MLMC 0000 X Xxxxxxx Xxxx.
ML-147 Clinton Place Multifamily Chase 00000 Xxxxxxx Xxxxx Xx.
ML-120 Heritage Park Apartments Multifamily WMF 0000 Xxxx Xxxxxxx Xxxxxx
ML-121 Delta Education Torstar CTL WMF 00 Xxxxxxxxx Xxxxxxxxx
ML-130 Amber Crest Apartments Multifamily MLMC 25350 US Xxxxxxx 00 Xxxxx
XX-000 XXXX-Xxxxxxxx Xxxxx Apartment Multifamily MLMC 505 Xxxxx Fargo
ML-109 Seafield Center Health Care XXXX 0 Xxxxxxxx Xxxx
XX-139 FLAG-Wintergreen Place Apartments Multifamily MLMC 000 X. Xxxxxxxxxxx Xxxx
XX-000 Xxxxxx Xxx Club Other MLMC 200 Packet Landing Rd
ML-125 RCA - Landing @ Westchase Multifamily MLMC 0000 Xxxxxxxxxx
XX-000 XXX-Xxxxxxxxx Xxxxxxx Apartments Multifamily MLMC 9001 Meadowbrook
ML-102 Equinox Terrace Senior Housing-Assisted Living MLMC 324 Equinox Terrace Rd
ML-112 Summit Apartments Multifamily MLMC 000 Xxxx 0xx Xxxxxx
ML-142 FLAG-Citation North Apt Multifamily MLMC 000 Xxxxxxxx Xxxxx Xxxxx
ML-131 Xxxxxx Mall Outparcel Retail MLMC US Route One
ML-103a GEN-Devonhouse Allentown Senior Housing-Assisted Living 0000 Xxxxx Xxxxx
ML-103b GEN-Devonhouse Catasauqua Senior Housing-Assisted Living 0 Xxxxx Xxxxxx
XX-000 XXX-Xxxxxxxxxx Xxxxxxxxx & Catasauqua MLMC
ML-140 FLAG-Rock Springs Apartment Multifamily MLMC 9000 Townpark
XX-000 Xxxxxxxxxx Xxxxxx Apartments Multifamily MLMC 0000 Xxxxxx Xxxxxx
XX-000 Xxxxxxx Xxxxxx Inn Hospitality MLMC 000 X. Xxxxxxx Xxx
ML-106 Holiday Inn - Waveland Hospitality MLMC 000 Xxxxxxx 00
XX-000 XXXX-Xxxxxxxxx Apartments Multifamily MLMC 10111 Bissonnet
XX-000 Xxxxx Xxxxxxx Multifamily WMF 000 Xxxxx Xxxxxxxxx
XX-000x Xxxx Xxxxx MHP Mobile Home Park 0000 X. Xxxxx Xxx.
ML-108b Northbrook MHP Mobile Home Park 0000 X.Xxxxxx Xx.
ML-108 Park Ridge & Northbrook MHP - multiple
prop loan MLMC
XX-000 Xxxx Xxxxx Retail WMF 0000 Xxxx Xxxxxx
XX-000 Xxxxxxx Xxxx MHP Mobile Home Park MLMC 3501 Xxxxxxx
XX-114 1383 Xxxxxxxx Office Bldg Office MLMC 1383 Xxxxxxxx
LOAN ZIP MORTGAGE RATE NET ORIGINAL CUT-OFF DATE BALLOON/REPAYMENT
ID CITY STATE CODE RATE TYPE RATE BALANCE BALANCE BALANCE
-----------------------------------------------------------------------------------------------------------------------------------
XX-000 Xxxxx Xxxx XX 0000 8.375 Fixed 8.2665 17,100,000 17,100,000 12,965,703
XX-000 Xxxxxxxx XX 00000 6.977 Fixed 6.8685 16,489,000 16,337,265 14,397,315
XX-000 Xxxxxxxxx XX 0000 8.375 Fixed 8.2665 15,740,000 15,740,000 11,934,512
XX-000 Xxxxx XX 00000 7.75 Fixed 7.6415 12,830,000 12,774,267 11,004,389
XX-000 Xxx Xxxxx XX 00000 7.75 Fixed 7.6415 11,000,000 10,993,724 9,640,741
ML-146 Xxxxxxx XX 00000 7.47 Fixed 7.4015 10,700,000 10,700,000 9,790,462
XX-000 Xxxx Xxxxxxxx XX 00000 7.025 Fixed 6.9165 9,600,000 9,960,221 8,700,203
XX-000 Xxxxxxxx XX 00000 7.59 Fixed 7.5215 9,608,000 9,608,000 8,183,003
XX-000 Xxxxxx XX 00000 7.29 Fixed 7.1815 8,600,000 9,577,018 8,422,965
XX-000 Xxxxxxx Xxxxxxxx XX 00000 7.61 Fixed 7.5415 9,500,000 9,500,000 8,096,110
XX-000 Xxxx Xxxxxx XX 00000 7.15 Fixed 7.0415 8,600,000 8,549,334 7,544,032
XX-000 Xxxxxx XX 0000 6.716 Fixed 6.6075 8,461,733 8,426,129 577,964
XX-000 Xxxxxxxxxx XX 00000 7.13 Fixed 7.0215 7,700,000 8,244,785 7,196,672
XX-000 Xxxxxxx XX 00000 7.37 Fixed 7.2615 5,995,000 7,492,394 6,572,575
XX-000 Xxxxxxxxxxx Xxxxx XX 00000 8.5 Fixed 8.3915 7,500,000 7,438,152 5,296,379
XX-000 XxXxxx XX 00000 7.22 Fixed 7.1115 5,500,000 6,460,384 5,649,823
XX-000 Xxxxxxx XX 00000 7.42 Fixed 7.3115 6,390,000 6,336,877 5,112,960
XX-000 Xxxxxxx XX 00000 7.43 Fixed 7.3215 5,840,000 6,276,740 5,837,663
ML-124 Ft. Xxxxx XX 00000 7.43 Fixed 7.3215 5,840,000 6,206,788 5,772,605
XX-000 Xxxxxxxxxx Xxxxxx XX 0000 6.75 Fixed 6.6415 6,000,000 5,962,720 5,140,133
XX-000 Xxxxxxxxx XX 00000 7.28 Fixed 7.1715 5,000,000 5,847,324 5,141,692
XX-000 Xxxxxxx XX 00000 7.37 Fixed 7.2615 3,690,000 5,303,071 4,652,030
XX-000 Xxxxxxxx XX 0000 8.375 Fixed 8.2665 4,900,000 4,894,164 4,348,107
ML-103a Xxxxxxxxx XX 00000 3,560,000 3,538,124 2,835,500
ML-103b Xxxxxxxxxx XX 00000 470,000 467,112 374,350
ML-103 7.25 Fixed 7.25 4,030,000 4,005,236 3,209,850
XX-000 Xxxxxxx XX 00000 7.094 Fixed 6.9855 3,200,000 3,718,448 3,243,271
XX-000 Xxxxxxxxxx XX 00000 7.19 Fixed 7.0815 3,200,000 3,553,408 3,119,006
XX-000 Xxxxxxx XX 00000 8.23 Fixed 8.1215 3,470,000 3,376,028 28,256
XX-000 Xxxxxxxx XX 00000 7.5 Fixed 7.3915 3,000,000 2,967,020 2,054,837
XX-000 Xxxxxxx XX 00000 7.37 Fixed 7.2615 1,980,000 2,684,394 2,354,837
XX-000 Xxxxxxxxxxx XX 00000 7.5 Fixed 7.3915 2,485,000 2,476,179 2,198,425
ML-108a Xxxxxxxxxxx XX 00000 1,029,180 1,020,060 814,099
ML-108b Xxxxxxxxxxx XX 00000 510,819 506,293 404,067
ML-108 7 Fixed 6.8915 1,540,000 1,526,353 1,218,167
XX-000 Xxx Xxxxxxx XX 00000 7.175 Fixed 7.0665 1,238,000 1,225,052 500,517
XX-000 Xxxxxxxxxxx XX 00000 7 Fixed 6.8915 1,060,000 1,050,607 838,478
XX-000 Xxxxxxxxxx Xxx XX 00000 7.75 Fixed 7.6415 860,000 855,095 694,133
LOAN TERM TERM MATURITY ARD TERM FIRST PAYMENT DEBT APPRAISED CURRENT UNDERWRITING
ID (MOS.) (MOS.) DATE DATE (MOS.) DATE SERVICE VALUE LTV DSCR
-----------------------------------------------------------------------------------------------------------------------------------
ML-133 120 120 6/1/09 264 7/1/99 143,356.04 23,500,000 72.8 1.6
ML-129 120 108 6/1/28 6/1/08 360 7/1/98 109,447.15 20,600,000 79.3 1.21
ML-134 120 120 6/1/09 264 7/1/99 131,954.62 26,400,000 59.6 1.73
ML-100 132 126 12/1/28 12/1/09 360 1/1/99 92,919.22 18,000,000 71 1.25
ML-144 120 119 5/1/09 360 6/1/99 79,686.17 16,200,000 67.9 1.25
ML-146 96 96 6/1/07 360 7/1/99 74,596.27 13,450,000 79.6 1.22
ML-127 120 105 3/1/08 360 4/1/98 67,976.03 12,600,000 79 1.31
ML-148 144 144 6/1/11 360 7/1/99 67,773.64 12,700,000 75.7 1.26
ML-113 120 103 1/1/08 360 2/1/98 67,203.06 12,150,000 78.8 1.32
ML-147 144 144 6/1/11 360 7/1/99 67,142.40 11,900,000 79.8 1.22
ML-120 120 112 10/1/08 360 11/1/98 58,084.98 11,400,000 75 1.2
ML-121 246 235 12/31/18 240 2/1/99 54,399.00 9,200,000 91.6 1
ML-130 120 108 6/1/08 360 7/1/98 56,712.70 10,400,000 79.3 1.47
ML-141 120 108 6/1/08 360 7/1/98 52,767.50 9,450,000 79.3 1.25
ML-109 120 115 1/1/09 240 2/1/99 65,667.24 10,400,000 71.5 2.27
ML-139 120 108 6/1/08 360 7/1/98 44,834.66 9,300,000 69.5 1.25
ML-105 120 113 11/1/08 300 12/1/98 47,334.33 9,600,000 66 1.57
ML-125 84 70 4/1/05 360 5/1/98 44,536.83 8,600,000 73 1.25
ML-124 84 70 4/1/05 360 5/1/98 44,040.42 8,200,000 75.7 1.25
ML-102 120 113 11/1/08 360 12/1/98 39,305.90 9,360,000 63.7 1.73
ML-112 120 103 1/1/08 360 2/1/98 40,991.44 8,330,000 70.2 1.25
ML-142 120 108 6/1/08 360 7/1/98 37,348.51 7,250,000 73.1 1.25
ML-131 120 118 4/1/09 360 5/1/99 37,673.13 7,450,000 65.7 1.4
ML-103a 25,971.82 4,450,000
ML-103b 3,428.86 1,080,000
ML-103 120 115 1/1/09 300 2/1/99 29,400.68 5,530,000 72.4 1.4
ML-140 120 108 6/1/08 360 7/1/98 25,486.72 5,200,000 71.5 1.31
ML-111 120 103 1/1/08 360 2/1/98 24,692.49 4,810,000 73.9 1.35
ML-110 264 246 12/1/19 264 1/1/98 28,448.64 6,100,000 55.3 1.68
ML-106 120 114 12/1/08 240 1/1/99 24,368.71 4,570,000 64.9 1.57
ML-143 120 108 6/1/08 360 7/1/98 18,905.68 3,360,000 79.9 1.28
ML-122 120 115 1/1/09 360 2/1/99 17,375.48 3,450,000 71.8 1.27
ML-108a 7,340.52 845,000
ML-108b 3,643.37 1,635,000
ML-108 120 113 11/1/08 300 12/1/98 10,983.90 2,480,000 61.5 1.52
ML-123 240 231 9/1/23 9/1/18 300 10/1/98 8,888.62 1,650,000 74.2 1.38
ML-145 120 113 11/1/08 300 12/1/98 7,560.35 1,375,000 76.4 1.38
ML-114 120 115 1/1/09 300 2/1/99 6,558.94 1,250,000 68.4 1.44
AND / OR
LOAN SERVICING FEE EXCESS INTEREST ACCRUAL IDOT CTL LEASE ENHANCEMENT
ID RATE YIELD RATE METHOD DEFEASED LOAN LOAN POLICY
------------------------------------------------------------------------------------------------------------------
ML-133 0.0735 0.035 Actual/360 Yes No
ML-129 0.0735 0.035 Actual/360 Yes No
ML-134 0.0735 0.035 Actual/360 Yes No
ML-100 0.0735 0.035 Actual/360 Yes No
ML-144 0.0735 0.035 Actual/360 Yes No
ML-146 0.0685 0 Actual/360 Yes No
ML-127 0.0735 0.035 Actual/360 No No
ML-148 0.0685 0 Actual/360 Yes No
ML-113 0.0735 0.035 Actual/360 No No
ML-147 0.0685 0 Actual/360 Yes No
ML-120 0.0735 0.035 Actual/360 Yes No
ML-121 0.0735 0.035 30/360 Yes Yes No
ML-130 0.0735 0.035 Actual/360 Yes No
ML-141 0.0735 0.035 Actual/360 Yes No
ML-109 0.0735 0.035 Actual/360 Yes No
ML-139 0.0735 0.035 Actual/360 Yes No
ML-105 0.0735 0.035 Actual/360 Yes No
ML-125 0.0735 0.035 Actual/360 No No
ML-124 0.0735 0.035 Actual/360 No No
ML-102 0.0735 0.035 Actual/360 Yes No
ML-112 0.0735 0.035 Actual/360 No No
ML-142 0.0735 0.035 Actual/360 Yes No
ML-131 0.0735 0.035 Actual/360 Yes No
ML-103a 0.0735 0.035 Actual/360 Yes No
ML-103b 0.0735 0.035 Actual/360 Yes No
XX-000
XX-000 0.0735 0.035 Actual/360 No No
ML-111 0.0735 0.035 Actual/360 No No
ML-110 0.0735 0.035 30/360 Yes No
ML-106 0.0735 0.035 Actual/360 Yes No
ML-143 0.0735 0.035 Actual/360 Yes No
ML-122 0.0735 0.035 Actual/360 Yes No
XX-000x
XX-000x
XX-000 0.0735 0.035 Actual/360 Yes No
ML-123 0.0735 0.035 Actual/360 Yes No
ML-145 0.0735 0.035 Actual/360 Yes No
ML-114 0.0735 0.035 Actual/360 No No
EXHIBIT B
OFFICER'S CERTIFICATE OF XXXXXXX XXXXX MORTGAGE CAPITAL INC.
In connection with the sale, assignment and transfer of
certain mortgage loans (collectively, the "Mortgage Loans") by Xxxxxxx Xxxxx
Mortgage Capital Inc. (the "Mortgage Loan Seller") to PaineWebber Mortgage
Acceptance Corporation V (the "Purchaser") pursuant to the Mortgage Loan Sale
Agreement dated as of June 1, 1999 (the "Mortgage Loan Sale Agreement") between
the Mortgage Loan Seller and the Purchaser, the Mortgage Loan Seller hereby
certifies that:
(a) The representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Sale Agreement are true and correct in
all material respects at and as of the date hereof with the same effect
as if made on the date hereof.
(b) The Mortgage Loan Seller has complied with the terms of the
Mortgage Loan Sale Agreement and satisfied all the conditions on its
part required under the Mortgage Loan Sale Agreement to be performed or
satisfied at a prior date hereof.
In WITNESS WHEREOF, the Mortgage Loan Seller has caused this
Certificate to be duly executed and delivered as of the 7th day of June 1999.
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:
--------------------------------
Name:
Title:
X-0
XXXXXXX X
[Xxxxxxxxxx xx Xxxxxxx Xxxxx Mortgage Capital Inc.]
June 7, 1999
Addressees Listed on Schedule A
Re: Mortgage Loan Purchase and Sale Agreement dated as of June 1, 1999 between
PaineWebber Mortgage Acceptance Corporation V and Xxxxxxx Xxxxx Mortgage
Capital Inc. (the "Agreement")
Ladies and Gentlemen:
I am the counsel to Xxxxxxx Xxxxx Mortgage Capital Inc., a
Delaware corporation (the "Company"), and, in such capacity, I am familiar with
the affairs of the Company.
I am providing this opinion in connection with the sale by the
Company to PaineWebber Mortgage Acceptance Corporation V of various commercial
and multi-family mortgage loans. This opinion is furnished to you pursuant to
Section 4.1(b)(iv) of the Mortgage Loan Purchase and Sale Agreement (the
"Agreement"). Terms used herein, but not otherwise defined herein, shall have
the meanings ascribed to them in the Agreement.
I have examined copies of the Agreement, the Certificate of
Incorporation of the Company and the By-Laws of the Company. I also have
examined such agreements, certificates of officers and representatives of the
Company and others, and other documents, papers, statutes and authorities as I
have deemed necessary to form the basis of the opinions hereinafter expressed.
In such examinations, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies of documents supplied to me. As to certain matters
of fact relevant to the opinions hereinafter compressed, I have relied solely
upon statements and certificates of the officers of the Company and others. I
have also assumed (other than with respect to the Company) that all documents,
agreements and instruments have been duly authorized, executed and delivered by
all parties thereto, that all such parties had the power and legal right to
execute and deliver all such documents, agreements and instruments, and that
such documents, agreements and instruments are valid, binding and enforceable
obligations of such parties.
I am admitted to the Bar of the State of , and I express
-------
no opinion as to any laws other than the laws of the United States, the State of
New York and the General Corporation Law of the State of Delaware.
Based on the foregoing, I am of the opinion that:
C-1
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is duly qualified as a [foreign] corporation in good standing in the
State of New York, with full corporate power and authority to own its
assets and conduct its business, to execute, deliver and perform the
Agreement and all the transactions contemplated thereby, including but
not limited to, the power and authority to sell, assign and retransfer
the Mortgage Loans in accordance with the Agreement and the Company has
taken all necessary action to authorize the execution, delivery and
performance of the Agreement by it, and the Agreement has been duly
authorized, executed and delivered by it.
2. The Agreement and all of the obligations of the Company
under the Agreement are valid, legal and binding obligations of the
Company enforceable against the Company in accordance with the terms of
the Agreement, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally, by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by public policy considerations,
statutes or court decisions to the effect that such public policy
considerations statutes or court decisions limit the enforceability of
the provisions of the Agreement relating to the rights to indemnity and
contribution.
3. The execution and delivery of the Agreement by the Company
and the performance of its obligations under the Agreement will not
conflict with any provision of any law or regulation to which the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions
of any of the Company's organizational documents or, to my knowledge,
any agreement or instrument to which the Company is a party or by which
it is bound, or any order or decree applicable to the Company, result
in the creation or imposition of any lien on any of the Company's
assets or property, in each case which would materially and adversely
affect the ability of the Company to carry out the transactions
contemplated by the Agreement.
4. To my knowledge, there is no action, suit, proceeding or
investigation pending or threatened in writing against the Company in
any court or by or before any other government agency or
instrumentality which would materially and adversely affect the
validity of the Mortgage Loans or the ability of the Company to carry
out the transactions contemplated by the Agreement.
5. To my knowledge, the Company 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 Company or its
properties or might have consequences that would materially and
adversely affect its performance under the Agreement.
C-2
6. To my knowledge, no consent, approval, authorization or
order of any court or governmental agency or body is required for the
execution, delivery and performance by the Company or compliance by the
Company with the Agreement or the consummation of the transactions
contemplated by the Agreement, other than those which have been
obtained by the Company.
This opinion is furnished solely for the benefit of the
addressees hereof in connection with the transaction referred to herein. This
letter may not be relied upon, used, quoted, circulated or otherwise referred to
by any other person or for any other purpose without my prior written approval.
This opinion is being given as of the date first written above and I express no
opinion as to events or conditions subsequent to such date.
Very truly yours,
C-3
SCHEDULE A
Xxxxx Xxxxxx Real Estate Securities Inc.
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc One Mortgage Capital Markets, LLC
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
PaineWebber Mortgage Acceptance Corporation V
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
PaineWebber Incorporated
1285 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investor Services
00 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ABN Amro Bank N.V.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
C-4
EXHIBIT D
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES WITH RESPECT
TO EACH MORTGAGE LOAN
The following are exceptions to the representations and warranties made
by the Mortgage Loan Seller with respect to each Mortgage Loan as set forth in
Section 3.2(b) of this Agreement. The item number indicates the subsection
number where such representation or warranty appears in Section 3.2(b) of this
Agreement.
(x) Single-Purpose Borrower:
Mortgage Loan Nos. XX-000, XX-000, XX-000 and ML-114 have Borrowers
which are not single-purpose entities.
(xi) Borrower Is the Sole Owner of Interest in Lease Payments.
With respect to Mortgage Loan No. ML-109, the related Borrower is
permitted to sell accounts receivable, in an aggregate amount of not more than
$1,200,000 in connection with the operation of its rehabilitation center.
(xiv) Existing Indebtedness
With respect to Mortgage Loan Nos. XX-000, XX-000, XX-000 and ML-129,
the owners of the related Borrowers are permitted to pledge their limited
partnership interests or other ownership interests in the Borrower as security
for mezzanine debt that was in existence as of the date of origination of the
related Mortgage Loan.
(xv) No Additional Indebtedness.
Mortgage Loan Nos. ML-123 and ML-131 permit some additional
indebtedness within the stated parameters.
(xxiii) Assignments of Leases Create First Priority Security Interest.
With respect to Mortgage Loan No. ML-109, the related Borrower is
permitted to sell accounts receivable, in an aggregate amount of not more than
$1,200,000 in connection with the operation of its rehabilitation center.
D-1
(xxiv) Mortgages Create First Lien.
Mortgage Loan No. ML-109 permits the related Borrower to sell accounts
receivable, in an aggregate amount of not more than $1,200,000 in connection
with the operation of its rehabilitation center.
(xl) No Encroachments.
With respect to Mortgage Xxxx Xx. XX-000 (XXX Xxxxxxxxxx Xxxxxxxxxx),
there is a garage from the adjoining property which encroaches on a strip of the
grassy area which is behind the parking lot on the Mortgaged Property. The
encroachment is less than a foot-wide and the strip is approximately 25 feet
long. There is no title insurance coverage insuring against losses arising from
such encroachments.
(xlix) Terms of Mortgage.
For the purpose of this representation, Mortgage Loan No. ML-105 (the
Harbor Bay Club) is not considered as health-related property.
(li) Credit Tenant Loans. The only Credit Tenant Lease is Mortgage
Loan No. ML- 121 (Delta).
(B) As to termination due to Casualty/Condemnation, Tenant
must substitute property or offer to purchase premises for 100% of Termination
Value plus investment if such Casualty/Condemnation would require Tenant to
close business for more than 60 days; or which entails loss of material portion
of improvements, parking lot or access or has rendered Premises uneconomic or
permanently unsuitable for restoration. Delta does not have Lease Enhancement
Policy.
(E) Delta does not have Lease Enhancement Policy.
(liii) ARD Loans.
(A) With respect to Mortgage Loan No. ML-100, the Mortgage
Rate may increase more than two percentage points from and after its Anticipated
Repayment Date.
D-2
(lv) Health Care Facilities.
(C)(5) Mortgage Loan No. ML-109 (past notice of cut back,
appealed and reinstated to prior level).
D-3
EXHIBIT E
LIST OF EARN-OUT LOANS
Property Name Cut-off Date Balance
ML-111 Sedgefield Square Apartments 3,553,408.15
ML-112 Summit Apartments 5,847,323.93
XX-000 Xxxxxxx Xxxxxxx Apartments 9,577,017.82
ML-124 RCA-Eastchase Terrace Apartments 6,206,788.45
ML-125 RCA - Landing @ Westchase 6,276,739.96
ML-127 Riverbend Apartments 9,960,221.36
ML-130 Amber Crest Apartments 8,244,785.09
XX-000 XXXX-Xxxxxxxxxxx Xxxxx Apartments 6,460,384.02
ML-140 FLAG-Rock Springs Apartment 3,718,448.08
ML-141 FLAG-Carriage Place Apartment 7,492,394.46
XX-000 XXXX-Xxxxxxxx Xxxxx Apt 5,303,071.43
ML-143 FLAG-Greyfield Apartments 2,684,393.82
E-1
EXHIBIT F
LIST OF CREDIT TENANT LOANS, RESIDUAL VALUE AND
LEASE ENHANCEMENT POLICES AND BONDABLE LEASES
---------------------------------------------------------------------------------------------------------------------------------
LEASE TYPE
(BONDABLE,
CASUALTY/CONDEM LEASED
LESSEE/GUARANTOR NATION ONLY, CUT OFF APPRAISED
LOAN ID PROPERTY NAME/LOCATION RATINGS (S&P /MOODYS) PROPERTY TYPE NNN, NN) BALANCE VALUE
---------------------------------------------------------------------------------------------------------------------------------
ML-121 Delta Education Torstar - Shadow Rated* CTL - Industrial NNN 8,426,129.20 9,200,000
Nashua, NH
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
*Shadow ratings are not necessarily by S&P or Moodys
---------------------------------------------------------------------------------------------------------------------------------
F-1
EXHIBIT G
LIST OF MEZZANINE DEBTS
Property Name Cut-off Date Balance
ML-110 Olympia Ramada Inn 3,376,027.87
XX-000 Xxxxxx Xxxxxxx 16,337,264.88
ML-124 RCA-Eastchase Terrace Apartments 6,206,788.45
ML-125 RCA - Landing @ Westchase 6,276,739.96
G-1
SCHEDULE I
List of Agreements under which the Mortgage Loan Seller acquired rights
in the Mortgage Loans as provided in Section 3.7 of this Agreement
Amended and Restated Mortgage Loan Purchase Agreement by and between Xxxxxxx
Xxxxx Mortgage Capital Inc. and X.X. Melody & Company, as successor to CB
Commercial Mortgage Company, Inc. dated as of April 1, 1997.
Mortgage Loan Purchase Agreement by and between Xxxxxxx Xxxxx Mortgage Capital
Inc. and Xxxxxxx Xxxxx Credit Corporation dated as of April 26, 1995.
Master Mortgage Loan Purchase Agreement by and between The Chase Manhattan Bank
and Xxxxxxx Xxxxx Mortgage Capital Inc. dated as of May 1, 1999.
Mortgage Loan Purchase Agreement (as amended) by and between Xxxxxxx Xxxxx
Mortgage Capital Inc. and WMF Capital Corp dated as of August 28, 1998.
Sched-1
