EXHIBIT 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of September
17, 2004 (this "Agreement"), is entered into between JPMorgan Chase Bank
("JPMorgan Chase") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase certain multifamily, commercial and manufactured housing community
mortgage loans (the "Mortgage Loans") identified on the schedule (the "Mortgage
Loan Schedule") annexed hereto as Exhibit A. The Purchaser intends to deposit
the Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of September 1, 2004 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc., as master servicer (in such capacity, the "Master Servicer"), and
as special servicer (in such capacity, the "Special Servicer"), LaSalle Bank
National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V. as
fiscal agent. Capitalized terms used but not defined herein (including the
schedules attached hereto) have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement,
dated as of September 17, 2004 (the "Underwriting Agreement"), with Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as
representative of X.X. Xxxxxx Securities Inc. ("JPMSI") and KeyBanc Capital
Markets, a Division of McDonald Investments Inc. ("KCM" and, together with
Xxxxxxx Xxxxx and JPMSI in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (such Certificates, the
"Publicly-Offered Certificates"). The Purchaser has also entered into a
Certificate Purchase Agreement, dated as of September 17, 2004 (the "Certificate
Purchase Agreement"), with Xxxxxxx Xxxxx, for itself and as representative of
JPMSI (together in such capacity, the "Initial Purchasers"), whereby the
Purchaser will sell to the Initial Purchasers all of the remaining Certificates
(such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the
mutual agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell,
and the Purchaser agrees to purchase, the Mortgage Loans identified on the
Mortgage Loan Schedule. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans delivered to the Purchaser pursuant to the terms hereof.
The Mortgage Loans are expected to have an aggregate principal balance of
$277,978,601 (the "JPMorgan Chase Mortgage Loan Balance") (subject to a variance
of plus or minus 5.0%) as of the close of business on the Cut-off Date, after
giving effect to any payments due on or before such date, whether or not such
payments are
received. The JPMorgan Chase Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $1,115,140,373 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take place on
September 29, 2004 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 104.8850% of the
JPMorgan Mortgage Loan Balance as of the Cut-off Date, plus (ii) $1,227,001,
which amount represents the amount of interest accrued on the JPMorgan Mortgage
Loan Balance at the related Net Mortgage Rate for the period from and including
the Cut-off Date up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the
Seller shall deliver, the Closing Date Deposit (in the amount of $40,016.67) to
the Master Servicer on the Closing Date. The Closing Date Deposit shall be
delivered to the account specified by the Master Servicer by wire transfer of
immediately available funds.
SECTION 2. Conveyance of Mortgage Loans. Effective as of the
Closing Date, subject only to receipt of the Purchase Consideration, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (except as set forth in this Agreement), all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date (other than the right to receive
the Retained Assumption Fee), on a servicing released basis, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance proceeds and all of the
Seller's right, title and interest in and to the Closing Date Deposit. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement. As used
above in this Section 2, the "Retained Assumption Fee" shall mean that portion
of the assumption fees and assumption application fees actually paid by the
related Mortgagor in connection with the first assumption of the Jefferson
Commons Mortgage Loan that occurs within six months of the Closing Date that is
in excess of $20,000.
(a) The Purchaser or its assignee shall be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(b) The Seller hereby represents and warrants that it has or
will have, on behalf of the Purchaser, delivered to the Trustee on or before the
Closing Date, the documents and instruments specified below with respect to each
Mortgage Loan (each, a "Mortgage File").
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All Mortgage Files so delivered will be held by the Trustee in escrow at all
times prior to the Closing Date. Each Mortgage File shall contain the following
documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note affidavit and
indemnity with a copy of such Mortgage Note attached thereto), together
with any and all intervening endorsements thereon, endorsed on its face
or by allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through Certificates,
Series 2004-KEY2, or in blank;
(ii) an original or copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except
for completion of the assignee's name (if the assignment is delivered in
blank) or a certified copy of that assignment as sent for recording and
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of LaSalle Bank
National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through
Certificates, Series 2004-KEY2, or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above) in favor of LaSalle Bank National Association, as
trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Trust
2004-KEY2, Commercial Mortgage Pass-Through Certificates, Series
2004-KEY2, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a pro forma policy or a marked version of the policy that
has been executed by an authorized representative of the title company
or an
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agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC Financing Statements in favor of the originator of such Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement
assignment, in form suitable for filing in favor of LaSalle Bank
National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2004-KEY2, Commercial Mortgage Pass-Through
Certificates, Series 2004-KEY2, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of
the Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement (if any),
escrow or reserve agreement (if any), security agreement (if any),
management agreement (if any), agreed upon procedures letter (if any),
lockbox or cash management agreements (if any), environmental reports
(if any), or letter of credit (if any), in each case relating to such
Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of the franchise agreement (if any) and/or
franchisor comfort letter (if any).
The foregoing Mortgage File delivery requirement shall be
subject to Section 2.01(c) of the Pooling and Servicing Agreement.
(c) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of all assignments and UCC Financing Statements to the Trustee) cause
to be submitted for recording or filing, as the case may be, in the appropriate
public office for real property records or UCC Financing Statements, each
assignment of Mortgage, assignment of Assignment of Leases and any other
recordable documents relating to each such Mortgage Loan in favor of the Trustee
that is referred to in clause (iv) of the definition of "Mortgage File" and each
UCC Financing Statement assignment in favor of the Trustee and that is referred
to in clause (viii) of the definition of "Mortgage File." Each such assignment
and UCC Financing Statement assignment shall reflect that the recorded original
should be returned by the public recording office to the Trustee following
recording, and each such assignment and UCC Financing Statement assignment shall
reflect that the file copy thereof should be returned to the Trustee following
filing; provided that in those instances where the public recording office
retains the original assignment of Mortgage or assignment of Assignment of
Leases, the Recording/Filing Agent shall obtain therefrom a certified copy of
the recorded original. If any such document or instrument is lost or returned
unrecorded or unfiled,
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as the case may be, because of a defect therein, then the Seller shall prepare a
substitute therefor or cure such defect or cause such to be done, as the case
may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Trustee (or, if the Mortgage Loan is then no longer subject to
the Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(d) All such other relevant documents and records that (a)
relate to the administration or servicing of the Mortgage Loans, (b) are
reasonably necessary for the ongoing administration and/or servicing of such
Mortgage Loans by the Master Servicer in connection with its duties under the
Pooling and Servicing Agreement, and (c) are in the possession or under the
control of the Seller, together with all unapplied escrow amounts and reserve
amounts in the possession or under the control of the Seller that relate to the
Mortgage Loans, shall be delivered or caused to be delivered by the Seller to
the Master Servicer (or, at the direction of the Master Servicer, to the
appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Trustee, for its administrative convenience in reviewing the Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the failure of the Seller to deliver a mortgage loan checklist
or a complete mortgage loan checklist shall not give rise to any liability
whatsoever on the part of the Seller to the Purchaser, the Trustee or any other
person because the delivery of the mortgage loan checklist is being provided to
the Trustee solely for its administrative convenience.
(e) The Seller shall take such actions as are reasonably
necessary to assign or otherwise grant to the Trust Fund the benefit of any
letters of credit in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a New York banking corporation duly organized,
validly existing and in good standing under the laws of the State of New
York and the Seller has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement by
it, and has the power and authority to execute, deliver and perform this
Agreement and all transactions contemplated hereby.
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(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller, all requisite action by the
Seller's directors and officers has been taken in connection therewith,
and (assuming the due authorization, execution and delivery hereof by
the Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by (A) laws
relating to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, as they may be applied in the context of
the insolvency of a New York banking corporation or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organization certificate or
bylaws, (B) violate any law or regulation or any administrative decree
or order to which it is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which default might have consequences that would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the condition (financial or other) or operations of the
Seller or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Seller or its properties or might have
consequences that would materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any organization certificate, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the ability of the
Seller to perform its obligations under this Agreement or that requires
the consent of any third person to the execution of this Agreement or
the performance by the Seller of its obligations under this Agreement
(except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this
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Agreement by the Seller, results or will result in the creation or
imposition of any lien on any of the Seller's assets or property that
would have a material adverse effect upon the Seller's ability to
perform its duties and obligations under this Agreement or materially
impair the ability of the Purchaser to realize on the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Seller, threatened against the Seller
in any court or by or before any other governmental agency or
instrumentality which would, in the Seller's good faith and reasonable
judgment, prohibit its entering into this Agreement or materially and
adversely affect the validity of this Agreement or the performance by
the Seller of its obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to
the Purchaser in exchange for consideration consisting of a cash amount
equal to the Purchase Consideration. The consideration received by the
Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration
for the Mortgage Loans. The Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the
Mortgage Loans to the Purchaser. The Seller is not selling the Mortgage
Loans to the Purchaser with any intent to hinder, delay or defraud any
of the creditors of the Seller.
(x) Each Mortgage Loan was either:
(a) originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or similar institution
which is supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to Sections 203 and 211 of the National Housing Act (any of the
foregoing, including the Seller, a "Qualified Originator"); or
(b) originated by a person that is not a Qualified Originator (a
"Non-Qualified Originator"), in which case,
(i) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards are the same as the Seller's in all material
respects), using application forms and related credit documents
approved by the Qualified Originator;
(ii) the Qualified Originator approved each application
and related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such commitment was
issued until the Qualified Originator agreed to fund such
Mortgage Loan;
(iii) the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing, standing
relationship with the Qualified Originator; and
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(iv) the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator, and,
pursuant to the Non-Qualified Originator's ongoing, standing
relationship with the Qualified Originator, then
(A) such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage
Loan was actually funded by the Qualified Originator at
the closing thereof;
(B) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non- Qualified
Originator in favor of the Qualified Originator at the
time of the closing of the Mortgage Loan, reflecting the
Qualified Originator as the successor and assign to the
Non-Qualified Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the closing
thereof and then acquired by the Qualified Originator from
such Non-Qualified Originator; or
(C) (z) such closing documents reflect the
Non-Qualified Originator as the original mortgagee, but
include assignment documents executed by the Non-
Qualified Originator in favor of the Qualified Originator
at the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the successor and
assign to the Non-Qualified Originator, and the Mortgage
Loan was funded initially by the Qualified Originator at
the closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
Each Mortgaged Property consists of one or more separate
tax parcels of real property upon which is located one or more
commercial structures and otherwise meets the requirements for
eligibility under the Secondary Mortgage Market Enhancement Act of 1984
for commercial property.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of the Pooling and Servicing Agreement, then the Seller shall, not later
than 90 days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the interest of
the Certificateholders therein, cure such Document Defect or Breach, as the case
may be, in all material respects, which shall include payment of losses and
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any Additional Trust Fund Expenses associated therewith or, if such Document
Defect or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) except in the case of the Mortgage Loan identified on the
Mortgage Loan Schedule as being secured by Deerbrook Apartments (which Mortgage
Loan may not be substituted) substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan (which, for purposes of this clause (ii), shall
include an REO Loan) not later than the end of such 90-day period (and in no
event later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Collection Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that, unless the breach would
cause the Mortgage Loan not to be a Qualified Mortgage, if such Document Defect
or Breach is capable of being cured but not within such 90-day period and the
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the Seller shall have an additional
90 days to complete such cure (or, failing such cure, to repurchase or
substitute the related Mortgage Loan (which, for the purpose of such repurchase
or substitution, shall include an REO Loan)); and provided, further, that with
respect to such additional 90-day period, the Seller shall have delivered an
officer's certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such Document Defect or Breach will be
cured within the additional 90-day period; and provided, further, that no
Document Defect (other than with respect to the Specially Designated Mortgage
Loan Documents) shall be considered to materially and adversely affect the
interests of the Certificateholders or the value of the related Mortgage Loan
unless the document with respect to which the Document Defect exists is required
in connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending any claim asserted by any borrower or
third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien or any collateral securing the Mortgage Loan or for any
immediate servicing obligations.
A Document Defect or Breach as to a Mortgage Loan (which
Document Default or Breach materially and adversely affects the value of the
related Mortgage Loan or the interest of the Certificateholders therein) that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), and is not cured as provided for above, shall require the repurchase or
substitution of all such Crossed Loans unless (1) the weighted average debt
service coverage ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less than
the weighted average debt service coverage ratio for all such Crossed Loans,
including the affected Crossed Loan, as of the Cut-off Date, and (2) the
weighted average loan to-value ratio for the remaining Crossed Loans determined
at the time of repurchase or substitution based upon an appraisal obtained by
the Special Servicer at the expense of the related Seller shall not be greater
than the weighted average loan-to-value ratio for all such Crossed Loans,
including the affected Crossed Loan as of the Cut-off Date; provided, that if
such debt service coverage and loan-to-value criteria are satisfied and any
Crossed Loan (that is not the Crossed Loan directly affected by the subject
Breach or Document Defect) is not so materially and adversely affected and
therefore is not so repurchased or substituted, then such
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Crossed Loan shall be released from its cross-collateralization and
cross-default provision so long as such Crossed Loan (that is not the Crossed
Loan directly affected by the subject Breach or Document Defect) is held in the
Trust Fund; and provided, further, that the repurchase of less than all such
Crossed Loans and the release of any Crossed Loan from a cross-collateralization
and cross-default provision shall be subject to the delivery by the Seller to
the Trustee, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release would not cause either of REMIC I or REMIC II to fail
to qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions; and provided, further, that the Controlling Class
Representative (if one is then acting) shall have consented to the repurchase or
substitution of the affected Crossed Loan, which consent shall not be
unreasonably withheld.
For a period of two years from the Closing Date, so long as
there remains any Mortgage File relating to a Mortgage Loan as to which there is
any uncured Document Defect or Breach known to the Seller, the Seller shall
provide, once every ninety days, the officer's certificate to the Trustee
described above as to the reasons such Document Defect or Breach remains uncured
and as to the actions being taken to pursue cure; provided, however, that,
without limiting the effect of the foregoing provisions of this Section 3(c), if
such Document Defect or Breach shall materially and adversely affect the value
of such Mortgage Loan or the interests of the holders of the Certificates
therein (subject to the last proviso in the second preceding sentence), the
Seller shall in all cases on or prior to the second anniversary of the Closing
Date either cause such Document Defect or Breach to be cured or repurchase or
substitute for the affected Mortgage Loan.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in
Section 3(d) while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan Group, the Seller and the Purchaser shall not enforce any remedies
against the other's Primary Collateral (as defined below), but each is permitted
to exercise remedies against the Primary Collateral securing its respective
Crossed Loan(s), so long as such exercise does not impair the ability of the
other party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would impair the ability of the
other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
Documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of impairment as a
result of the exercise of remedies. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan Documents, or otherwise on a
pro rata basis based upon their outstanding Stated Principal Balances.
Notwithstanding the foregoing, if a Crossed Loan is modified to terminate the
related cross-collateralization and/or cross-default provisions, the Seller
shall furnish to the Trustee an Opinion of Counsel that such modification shall
not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the
Mortgaged Property directly securing a Crossed Loan and excluding any property
as to which the related lien may
10
only be foreclosed upon by exercise of cross-collateralization provisions of
such Mortgage Loans.
The foregoing provisions of this Section 3(c) notwithstanding,
the Purchaser's sole remedy for a breach of the representation in paragraph 30
on Schedule I hereto shall be the cure of such breach by the Seller, which cure
shall be effected through the payment by the Seller of such costs and expenses
(without regard to whether such costs and expenses are material or not)
specified in such paragraph that have not, at the time of such cure, been
received by the Master Servicer or the Special Servicer from the related
Mortgagor and not a repurchase of the related Mortgage Loan. To the extent any
fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller.
(d) In connection with any permitted repurchase or substitution
of one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price (as
defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the Collection Account, and, if applicable, the
delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the Master Servicer or the Seller, in each
case without recourse, representation or warranty, as shall be necessary to vest
in the Seller, the legal and beneficial ownership of each repurchased Mortgage
Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loan(s).
(e) This Section 3 provides the sole remedy available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Purchaser has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(b) This Agreement has been duly and validly authorized,
executed and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery
11
hereof by the Seller) this Agreement constitutes the valid, legal and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance with
its terms, except as such enforcement may be limited by (A) laws relating to
bankruptcy, insolvency, fraudulent transfer, reorganization, receivership or
moratorium, (B) other laws relating to or affecting the rights of creditors
generally, or (C) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the
Purchaser and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or result
in the breach of, any material contract, agreement or other instrument to which
the Purchaser is a party or by which the Purchaser is bound, which default might
have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the
Purchaser will report the transfer of the Mortgage Loans by the Seller to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Purchaser, threatened against the Purchaser
in any court or by or before any other governmental agency or instrumentality
which would materially and adversely affect the validity of this Agreement or
any action taken in connection with the obligations of the Purchaser
contemplated herein, or which would be likely to impair materially the ability
of the Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental
12
agency or body, which default might have consequences that would, in the
Purchaser's reasonable and good faith judgment, materially and adversely affect
the condition (financial or other) or operations of the Purchaser or its
properties or might have consequences that would materially and adversely affect
its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx
LLP on the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee
(or a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by
it to the Purchaser or otherwise pursuant to this Agreement as of the Closing
Date;
(f) A letter from the independent accounting firm of Ernst &
Young LLP in form satisfactory to the Purchaser, relating to certain information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of September 17, 2004
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, KeyBank National Association,
the Purchaser, the Underwriters and the Initial Purchasers. Both parties agree
to use their best reasonable efforts to perform their respective obligations
hereunder in a manner that will enable the Purchaser to purchase the Mortgage
Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall
consist of the following:
(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Servicing
13
Rights Purchase Agreement, dated as of September 1, 2004, between the Seller
and KeyCorp Real Estate Capital Markets, Inc., duly executed by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser may rely, to the effect that each individual who, as an
officer or representative of the Seller, signed this Agreement, the
Indemnification Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein
or therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller
(signed in his/her capacity as an officer), dated the Closing Date, and upon
which the Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has carefully examined the Specified Portions of the
Private Placement Memorandum, dated as of September 17, 2004 (the "Memorandum")
(pursuant to which certain classes of the Private Certificates are being
privately offered) and nothing has come to his attention that would lead him to
believe that the Specified Portions of the Memorandum, as of the date thereof or
as of the Closing Date, included or include any untrue statement of a material
fact relating to the Mortgage Loans or omitted or omit to state therein a
material fact necessary in order to make the statements therein related to the
Mortgage Loans, in the light of the circumstances under which they were made,
not misleading. The "Specified Portions" of the Prospectus Supplement shall
consist of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage
Loans" (insofar as the information contained in Annex A-1 relates to the
Mortgage Loans sold by the Seller hereunder), Annex A-2 to the Prospectus
Supplement, entitled "Certain Statistical Information Regarding the Mortgage
Loans" (insofar as the information contained in Annex A-2 relates to the
Mortgage Loans sold by the Seller hereunder), Annex B to the Prospectus
Supplement entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as the information contained in Annex B relates to the Mortgage Loans
sold by the Seller hereunder), Annex C to the Prospectus Supplement, entitled
"Structural and Collateral Term Sheet" (insofar as the information contained in
Annex C relates to the Mortgage Loans sold by the Seller hereunder), the
diskette which accompanies the Prospectus Supplement
14
(insofar as such diskette is consistent with Annex X-0, Xxxxx X-0 and/or Annex
B), and the following sections of the Prospectus Supplement (only to the extent
that any such information relates to the Seller or the Mortgage Loans sold by
the Seller hereunder and, without limitation, exclusive of any statements in
such sections that purport to describe the servicing and administration
provisions of the Pooling and Servicing Agreement): "Summary of Prospectus
Supplement--Relevant Parties--Mortgage Loan Sellers," "Summary of Prospectus
Supplement--The Mortgage Loans And The Mortgaged Real Properties," "Risk
Factors" and "Description of the Mortgage Pool". The "Specified Portions" of the
Memorandum shall consist of the Specified Portions of the Prospectus Supplement
(as attached as an exhibit to the Memorandum).
(e) Each of: (i) the resolutions of the Seller's board of
directors or a committee thereof authorizing the Seller's entering into the
transactions contemplated by this Agreement, (ii) the organization certificate
and bylaws of the Seller, and (iii) a certificate of good standing of the Seller
issued by the State of New York not earlier than thirty (30) days prior to the
Closing Date;
(f) A written opinion of counsel for the Seller (which opinion
may be from in-house counsel, outside counsel or a combination thereof),
reasonably satisfactory to the Purchaser, its counsel and the Rating Agencies,
dated the Closing Date and addressed to the Purchaser, the Trustee, the
Underwriters, the Initial Purchasers and each of the Rating Agencies, together
with such other written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated,
both the Seller and the Purchaser shall pay their respective share of the
transaction expenses incurred in connection with the transactions contemplated
herein as set forth in the closing statement prepared by the Purchaser and
delivered to and approved by the Seller on or before the Closing Date, and in
the memorandum of understanding to which the Seller and the Purchaser are
parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments,
15
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and sent
by facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
16
permitted by applicable law, the parties hereto waive any provision of law that
prohibits or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
that obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party that commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser
agree to execute and deliver such instruments and take such further actions as
the other party may, from time to time, reasonably request in order to
effectuate the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations
of the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the Purchaser, except that any person into which
the Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 17. Amendments. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such waiver
or modification is sought to be
17
enforced. The Seller's obligations hereunder shall in no way be expanded,
changed or otherwise affected by any amendment of or modification to the Pooling
and Servicing Agreement, including, without limitation, any defined terms
therein, unless the Seller has consented to such amendment or modification in
writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate with Ernst & Young LLP in making available all information and taking
all steps reasonably necessary to permit such accountants to deliver the letters
required by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers to
such Person's employees or agents who were or are responsible for or involved
with the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed
Loan Group is identified on the Mortgage Loan Schedule. For purposes of
reference, the Mortgaged Property that relates or corresponds to any of the
Mortgage Loans in a Crossed Loan Group shall be the property identified in the
Mortgage Loan Schedule as corresponding thereto. The provisions of this
Agreement, including, without limitation, each of the representations and
warranties set forth in Schedule I hereto and each of the capitalized terms used
herein but defined in the Pooling and Servicing Agreement, shall be interpreted
in a manner consistent with this Section 20. In addition, if there exists with
respect to any Crossed Loan Group only one original of any document referred to
in the definition of "Mortgage File" in this Agreement and covering all the
Mortgage Loans in such Crossed Loan Group, the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such Crossed Loan
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers as
of the date first above written.
SELLER
------
JPMORGAN CHASE BANK
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
---------
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
Address for Notices:
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged
Property shall mean the value of such Mortgaged Property as determined by the
appraisal (and subject to the assumptions set forth in the appraisal) performed
in connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage Loan Schedule with respect to the Mortgage Loans is true and correct in
all material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Due Dates for the Mortgage Loans in September 2004.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the sole owner of, each Mortgage Loan. The Seller has full right, power
and authority to transfer and assign each Mortgage Loan to or at the direction
of the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and
interest under any Mortgage Loan was 30 days or more past due as of the Due Date
for such Mortgage Loan in September 2004 without giving effect to any applicable
grace period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan in
September 2004, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in connection with each Mortgage Loan constitutes a valid and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate
I-1
taxes, ground rents, water charges, sewer rents and assessments not yet
delinquent or accruing interest or penalties; (b) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related lender's title insurance policy
(or, if not yet issued, referred to in a pro forma title policy or a "marked-up"
commitment binding upon the title insurer); (c) exceptions and exclusions
specifically referred to in such lender's title insurance policy (or, if not yet
issued, referred to in a pro forma title policy or "marked-up" commitment
binding upon the title insurer); (d) other matters to which like properties are
commonly subject; (e) the rights of tenants (as tenants only) under leases
(including subleases) pertaining to the related Mortgaged Property; (f) if such
Mortgage Loan constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for another Mortgage Loan contained in the same Crossed Group; and (g)
if the related Mortgaged Property consists of one or more units in a
condominium, the related condominium declaration. The Permitted Encumbrances do
not, individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income sufficient
to service such Mortgage Loan. The related assignment of such Mortgage executed
and delivered in favor of the Trustee is in recordable form (but for insertion
of the name and address of the assignee and any related recording information
which is not yet available to the Seller) and constitutes a legal, valid,
binding and, subject to the limitations and exceptions set forth in Paragraph 13
below, enforceable assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in Paragraph 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in Paragraph 13 below, enforceable
assignment of such Assignment of Leases from the relevant assignor to the
Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of
each Mortgage Loan, except by a written instrument which has been delivered to
the Purchaser or its
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designee as a part of the related Mortgage File, (a) the related Mortgage
(including any amendments or supplements thereto included in the related
Mortgage File) has not been impaired, waived, modified, altered, satisfied,
canceled, subordinated or rescinded, (b) neither the related Mortgaged Property
nor any material portion thereof has been released from the lien of such
Mortgage and (c) the related Mortgagor has not been released from its
obligations under such Mortgage, in whole or in material part.
7. Condition of Property; Condemnation. In the case of each
Mortgage Loan, except as set forth in an engineering report prepared by an
independent engineering consultant in connection with the origination of such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge, in
good repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge of
any proceeding pending for the condemnation of all or any material portion of
the Mortgaged Property securing any Mortgage Loan. As of the date of origination
of each Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a)
none of the material improvements on the related Mortgaged Property encroach
upon the boundaries and, to the extent in effect at the time of construction, do
not encroach upon the building restriction lines of such property, and none of
the material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in Paragraph 8 below or that do
not materially and adversely affect the Value or current use of such Mortgaged
Property and (b) no improvements on adjoining properties encroached upon such
Mortgaged Property so as to materially and adversely affect the Value of such
Mortgaged Property, except those encroachments that are insured against by the
lender's title insurance policy referred to in Paragraph 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) will inure
to the
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benefit of the Trustee as sole insured without the consent of or notice to the
insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been
fully disbursed (except in those cases where the full amount of the Mortgage
Loan has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan Documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances with
respect thereto.
10. Mortgage Provisions. The Mortgage Loan Documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in Paragraph 13 below,
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby, including, without limitation, foreclosure or similar proceedings (as
applicable for the jurisdiction where the related Mortgaged Property is
located). None of the Mortgage Loan Documents contains any provision that
expressly excuses the related Mortgagor from obtaining and maintaining insurance
coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any
Mortgage Loan is a deed of trust, then (a) a trustee, duly qualified under
applicable law to serve as such, has either been properly designated and
currently so serves or may be substituted in accordance with the Mortgage and
applicable law, and (b) no fees or expenses are payable to such trustee by the
Seller, the Depositor or any transferee thereof except in connection with a
trustee's sale after default by the related Mortgagor or in connection with any
full or partial release of the related Mortgaged Property or related security
for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the
Mortgaged Properties identified on Annex B hereto (as to which properties the
only environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar properties
including use, type and tenants of the related Mortgaged Property, a transaction
screen meeting ASTM standards or an update of a previously conducted
environmental site assessment (which update may have been performed pursuant to
a database update), was performed by an independent third-party environmental
consultant (licensed to the extent required by applicable state law) with
respect to each Mortgaged Property securing a Mortgage Loan in connection with
the origination of such Mortgage Loan, (b) the report of each such assessment,
update or screen, if any (an "Environmental Report"), is dated no earlier than
(or, alternatively, has been updated within) twelve (12) months prior to the
date hereof, (c) a copy of each such Environmental Report has been delivered to
the Purchaser, and (d) either: (i) no such
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Environmental Report, if any, reveals that as of the date of the report there is
a material violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or (ii)
if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have not
been subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan Documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
Documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto
are covered by environmental insurance policies and each such policy is
noncancellable during its term, is in the amount at least equal to 125% of the
principal balance of the Mortgage Loan, has a term ending no sooner than the
date which is five years after the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan Documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage,
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treatment, transportation, manufacture, refinement, handling, production or
disposal of hazardous materials. The related Mortgagor (or affiliate thereof)
has agreed to indemnify, defend and hold the Seller and its successors and
assigns harmless from and against any and all losses, liabilities, damages,
injuries, penalties, fines, expenses and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or suffered by or asserted
against, any such party resulting from a breach of environmental
representations, warranties or covenants given by the Mortgagor in connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer and conveyance or other
similar laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions in such loan documents may be further limited or rendered
unenforceable by applicable law, but (subject to the limitations set forth in
the foregoing clauses (i) and (ii)) such limitations or unenforceability will
not render such loan documents invalid as a whole or substantially interfere
with the mortgagee's realization of the principal benefits and/or security
provided thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a
net worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy meeting the requirements of the then current
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guidelines of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the minimum amount required, under the terms of coverage, to
compensate for any damage or loss on a replacement basis, (2) the outstanding
principal balance of such Mortgage Loan, and (3) the maximum amount of insurance
available under the applicable National Flood Insurance Administration Program.
Each Mortgaged Property located in California or in seismic zones 3 and 4 is
covered by seismic insurance to the extent such Mortgaged Property has a
probable maximum loss of greater than twenty percent (20%) of the replacement
value of the related improvements, calculated using methodology acceptable to a
reasonably prudent commercial mortgage lender with respect to similar properties
in the same area or earthquake zone. Each Mortgaged Property located within
Florida or within 25 miles of the coast of North Carolina, South Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the full
insurable replacement cost of the improvements located on such Mortgaged
Property. All such hazard and flood insurance policies contain a standard
mortgagee clause for the benefit of the holder of the related Mortgage, its
successors and assigns, as mortgagee, and are not terminable (nor may the amount
of coverage provided thereunder be reduced) without ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan Documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan Documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan Documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in Paragraph 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property
taxes or assessments or other outstanding charges affecting any Mortgaged
Property securing a Mortgage Loan that are a lien of priority equal to or higher
than the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay
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such charge. For purposes of this representation and warranty, real property
taxes and assessments and other charges shall not be considered delinquent until
the date on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is
a debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon
a letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by
the interest of a Mortgagor as a lessee under a ground lease of all or a
material portion of a Mortgaged Property (together with any and all written
amendments and modifications thereof and any and all estoppels from or other
agreements with the ground lessor, a "Ground Lease"), but not by the related fee
interest in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been
no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File; and if
required by such Ground Lease, the lessor thereunder has received notice
of the lien of the related Mortgage in accordance with the provisions of
such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of
the related Mortgaged Property covered by such Ground Lease is not
subject to any liens or encumbrances superior to, or of equal priority
with, the related Mortgage, other than the related Fee Interest and
Permitted Encumbrances;
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(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Trustee upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained); provided that such
Ground Lease has not been terminated and all amounts owed thereunder
have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee under such Mortgage
Loan; and such Ground Lease further provides that no notice of
termination given under such Ground Lease is effective against the
mortgagee under such Mortgage Loan unless a copy has been delivered to
such mortgagee in the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease)
to cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease has a currently effective term
(including any options exercisable by the holder of the related
Mortgage) that extends not less than 20 years beyond the Stated Maturity
Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related
Mortgage, taken together, any related casualty insurance proceeds (other
than de minimis amounts for minor casualties) with respect to the
leasehold interest will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property, with the
mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable
by a prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender in the lending area where the related
Mortgaged Property is located at the time of the origination of such
Mortgage Loan; and
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(xi) such Ground Lease provides that it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and any such action without such consent is not binding
on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code and Treasury
Regulations Section 1.860G-2(a) (but without regard to the rule in Treasury
Regulations Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage under certain circumstances). Each
Mortgage Loan is directly secured by an interest in real property (within the
meaning of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either
(1) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the previous
sentence, the fair market value of the referenced interest in real property
shall first be reduced by (1) the amount of any lien on such interest in real
property that is senior to the Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is in parity with the Mortgage
Loan.
20. Advancement of Funds. In the case of each Mortgage Loan,
neither the Seller nor, to the Seller's knowledge, any prior holder of such
Mortgage Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than amounts paid by the tenant as specifically provided under a
related lease or by the property manager), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent
Interest. No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in the
related Mortgaged Property or the related Mortgagor, provides for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property, or provides for the negative amortization of
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated Repayment
Date and continuing until such Mortgage Loan is paid in full, (a) additional
interest shall accrue and may be compounded monthly and shall be payable only
after the outstanding principal of such Mortgage Loan is paid in full, and (b) a
portion of the cash flow generated by such Mortgaged Property will be applied
each month to pay down the principal balance thereof in addition to the
principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or before
any court or
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governmental authority against or affecting the Mortgagor under any Mortgage
Loan or the related Mortgaged Property that, if determined adversely to such
Mortgagor or Mortgaged Property, would materially and adversely affect the value
of the Mortgaged Property as security for such Mortgage Loan or the current
ability of the Mortgagor to pay principal, interest or any other amounts due
under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
Documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date, to
the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the
date of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related
I-11
Mortgaged Properties with respect to such Mortgage Loans is at least equal to
the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or
Mortgage requires the mortgagee to release all or any material portion of the
related Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in connection with a defeasance of the related
Mortgage Loan; provided that the Mortgage Loans that are Crossed Loans, and the
other individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for
any defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, defeasance under each such
Mortgage Loan is only for the purpose of facilitating the disposition of a
Mortgaged Property and not as part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan
permits defeasance, then the related Mortgage Loan Documents provide that the
related Mortgagor is responsible for the payment of all reasonable costs and
expenses associated with defeasance incurred by the related mortgagee, including
Rating Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan Documents provide that the related Mortgagor is responsible for
all reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a
rate that remains fixed throughout the remaining term of such Mortgage Loan,
except in the case of an ARD Loan after its Anticipated Repayment Date and
except for the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists
no material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any
I-12
Mortgage Loan (other than payments due but not yet 30 days or more delinquent);
provided, however, that this representation and warranty does not cover any
default, breach, violation or event of acceleration that pertains to or arises
out of the subject matter otherwise covered by any other representation and
warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers by devise or descent or by operation of law upon death,
transfers of less than a controlling interest in the Mortgagor, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Mortgagor,
transfers among affiliated Mortgagors with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan
with a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan Documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
Documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments
of principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter
I-13
into a lockbox arrangement on the ARD Loan whereby all revenue from the related
Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording, in all places
necessary to perfect (to the extent that the filing of such a UCC financing
statement can perfect such a security interest) a valid security interest in the
personal property of the related Mortgagor granted under the related Mortgage.
If any Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more Uniform Commercial Code financing statements covering such
personal property have been filed or recorded (or have been sent for filing or
recording) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing of a Uniform Commercial Code financing statement under
applicable law). The related assignment of such security interest (but for
insertion of the name of the assignee and any related information which is not
yet available to the Seller) executed and delivered in favor of the Trustee
constitutes a legal, valid and, subject to the limitations and exceptions set
forth in Paragraph 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee.
40. Prepayment Premiums and Yield Maintenance Charges.
Prepayment Premiums and Yield Maintenance Charges payable with respect to each
Mortgage Loan, if any, constitute "customary prepayment penalties" within
meaning of Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to
amortize prior to its Stated Maturity Date or, in the case of an ARD Loan, prior
to its Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto, no Person has been granted or conveyed
the right to service any Mortgage Loan or receive any consideration in
connection therewith.
43. Recourse. The related Mortgage Loan Documents contain
provisions providing for recourse against the related Mortgagor, a principal of
such Mortgagor, or an entity controlled by a principal of such Mortgagor for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional) misrepresentation,
waste or misappropriation of any tenant security deposits (in some cases, only
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation proceeds. The
related Mortgage Loan Documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an
I-14
entity controlled by a principal of such Mortgagor, has agreed to indemnify the
mortgagee for damages resulting from violations of any applicable environmental
laws.
44. Assignment of Collateral. There is no material collateral
securing any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured by
a Ground Lease and is the subject of paragraph 18, the interest of the related
Mortgagor in the Mortgaged Property securing each Mortgage Loan is a fee simple
interest in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements
and environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan Documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Mortgagor, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the
related Mortgage or Mortgage Note provides a grace period for delinquent monthly
payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged
Property securing any Mortgage Loan is covered by a secured creditor impaired
property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer under such
policy the "pollution conditions" (as defined in such policy) identified
in any environmental reports related to such Mortgaged Property which
are in the Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer
under such policy copies of all environmental reports in the Seller's
possession related to such Mortgaged Property;
I-15
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in
connection with the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met
customary standards utilized by prudent commercial mortgage loan
servicers with respect to whole loans.
52. Appraisal. In connection with its origination or acquisition
of each Mortgage Loan, the Seller obtained an appraisal of the related
Mortgaged Property, which appraisal is signed by an appraiser, who, to
the Seller's knowledge, had no interest, direct or indirect, in the
Mortgaged Property or the Mortgagor or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan; the appraisal, or a letter from the
appraiser, states that such appraisal satisfies the requirements of the
"Uniform Standards of Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal Foundation, all as in effect
on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all
of the Mortgage Loans.
54. Mortgagor Formation or Incorporation. To the Seller's
knowledge, the related Mortgagor is a Person formed or incorporated in a
jurisdiction within the United States.
I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
EXCEPTIONS TO REPRESENTATION 4
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
98 Xxxxxxx Office Building The adjoining property owner has a right of first refusal.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 5
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
93 0000 Xxxxx Xxxxxxx Xxxxxx The Mortgagor is structured as an Illinois Land Trust, under which
the beneficiaries of such land trust (pursuant to the applicable
trust agreement and Illinois law) are entitled to the payments due
under the related leases on which the Mortgagor is the landlord.
---------------------------------------------- -----------------------------------------------------------------------
68 Xxxx Xxxx Corporate Center Each of the Mortgage Loans is structured as an indemnity deed of
116 00 Xxxx Xxxxxx trust ("IDOT"), under which the guarantors of the IDOT own the
000 XXX Xxxxxxxx related Mortgaged Properties and thus have an interest in the lease
payments.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 6
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
77 Westwood Village SC The Mortgage Loan Documents were amended to permit future mezzanine
debt, the ground lease was amended to extend the notice and cure
period to ninety days, the ground lease was subordinated pursuant to
a ground lease subordination agreement, and the title policy was
amended to cover the ground lease.
---------------------------------------------- -----------------------------------------------------------------------
93 0000 Xxxxx Xxxxxxx Xxxxxx The Mortgagor has requested the Mortgagee's consent to an assumption
of the Mortgage Loan, and such request is currently under review.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 7
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
000 Xxxxxxxx Xxxxxxxx MHP With respect to the Mortgaged Property, the front setback is
deficient by 5 feet, the side setback is deficient between 2 and 15
feet, and one structure encroaches 5.3 feet into the Mortgaged
Property.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 10
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
16 Xxxxxxx Value Center The Mortgagor is not required to spend more than two times the cost
31 Sunset Strip Shopping Center of a base all-risk insurance policy to carry terrorism insurance.
---------------------------------------------- -----------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------
26 Sky Harbor MHP The Mortgagor is required to carry terrorism insurance only if such
insurance is available at a cost that is not more than 105% of the
cost of an all-risk insurance policy without terrorism coverage.
---------------------------------------------- -----------------------------------------------------------------------
11 150 & 200 Meadowlands Pky The Mortgagor is not required to spend more than $46,500 in any
fiscal year on insurance premiums specifically for terrorism
insurance.
---------------------------------------------- -----------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx The amount of terrorism insurance that the Mortgagor is required to
purchase is limited by a premium cap.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 12
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
32 Oaktree Village SC There is a holdback escrow of $37,500, which is to be released upon
completion of environmental remediation related to a former dry
cleaner, but such escrow is only approximately 100% of the estimated
potential cost of the remediation.
---------------------------------------------- -----------------------------------------------------------------------
16 Xxxxxxx Value Center An Operations and Maintenance Plan with respect to asbestos was
31 Sunset Strip Shopping Center recommended for the Mortgaged Property, but has not been
implemented.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 14
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
16 Xxxxxxx Value Center The Mortgagor is not required to spend more than two times the cost
31 Sunset Strip Shopping Center of base all-risk insurance policy to carry terrorism insurance.
---------------------------------------------- -----------------------------------------------------------------------
26 Sky Harbor MHP The Mortgagor is required to carry terrorism insurance only if such
insurance is available at a cost that is not more than 105% of the
cost of an all-risk insurance policy without terrorism coverage.
---------------------------------------------- -----------------------------------------------------------------------
26 Sky Harbor MHP The insurance policy with respect to the related Mortgaged Property is
less than the loan amount and full insurable replacement cost.
---------------------------------------------- -----------------------------------------------------------------------
11 150 & 200 Meadowlands Pky The Mortgagor is not required to spend more than $46,500 in any
fiscal year on insurance premiums specifically for terrorism
insurance.
---------------------------------------------- -----------------------------------------------------------------------
57 Elm & Xxxxxx Plaza The insurance policy with respect to one of the related Mortgaged
Properties does not contain the appropriate exclusions to avoid the
application of co-insurance.
---------------------------------------------- -----------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx The amount of terrorism insurance that the Mortgagor is required to
purchase is limited by a premium cap.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 17
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
32 Oaktree Village SC The Mortgaged Property is legal non-conforming because parking is
deficient by 22 spaces.
---------------------------------------------- -----------------------------------------------------------------------
---------------------------------------------- -----------------------------------------------------------------------
000 Xxxxxxxx Xxxxxxxx MHP With respect to the Mortgaged Property, the front setback is
deficient by 5 feet, the side setback is deficient between 2 and 15
feet, and one structure encroaches 5.3 feet into the Mortgaged
Property.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 33
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
32 Oaktree Village SC The Mortgage Loan Documents required the Mortgagor to deliver to the
Mortgagee a tenant estoppel and a subordination and non-disturbance
agreement, but the Mortgagor failed to do so.
---------------------------------------------- -----------------------------------------------------------------------
00 Xxxxxxxxxx Xxx-Xxxx (Xxx #5) The Mortgage Loan Documents required the Mortgagor to deliver a
tenant estoppel agreement with Starbucks by September 15, 2004, but
the Mortgagor failed to do so.
---------------------------------------------- -----------------------------------------------------------------------
93 0000 Xxxxx Xxxxxxx Xxxxxx The Mortgage Loan Documents required the Mortgagor to deliver
subordination and non-disturbance agreements by September 5, 2004,
but the Mortgagor failed to do so.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 34
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
61 Pomona Business Center The Mortgage Loan Documents permit certain transfers of ownership
00 Xxxxxx Xxxxxx Xxxxx interests to transferees meeting certain requirements without the
26 Sky Harbor MHP consent of the Mortgagee under specified conditions.
---------------------------------------------- -----------------------------------------------------------------------
98 Xxxxxxx Office Building The Mortgage Loan Documents permit certain transfers of ownership
interests in the Mortgagor to financial institutions approved by the
Mortgagee subject to conditions, including an acceptable
intercreditor agreement and other acceptable subordination documents.
---------------------------------------------- -----------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx The Mortgage Loan Documents permit certain transfers of interest in
the mezzanine borrower.
---------------------------------------------- -----------------------------------------------------------------------
43 0000 Xxxxxxxx Xxxxxx The Mortgage Loan Documents permit certain transfers of interest in
21 000 Xxxxxxxx Xxxxxx the Mortgagor to certain identified persons or entities controlled by
99 000 Xxxxxxxx Xxxxxx such persons without the consent of the Mortgagee.
---------------------------------------------- -----------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx Provided that certain conditions described in the Mortgage Loan
Documents are satisfied, the Mortgage Loan Documents permit an
assumption of 100% of the indirect interests in the Mortgagor without
mortgagee's consent in connection with an acquisition of the
Mortgaged Property by Education Realty Operating Partnership, LP
("EROP") pursuant to an existing contract of sale between current
indirect owners in the Mortgagor and EROP.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 35
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
00 Xxx & Xxxxxx Xxxxx Xxx Xxxxxxxxx is not a Single Purpose Entity.
---------------------------------------------- -----------------------------------------------------------------------
16 Xxxxxxx Value Center The Mortgagor was not originally formed to be a Single Purpose
45 Windhaven SC Entity, but the Mortgage Loan Documents restrict the Mortgagor to the
ownership of one property during the term of the loan.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 43
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
61 Pomona Business Center The Mortgage Loan Documents limit recourse for fraud or material
00 Xxxxxx Xxxxxx Xxxxx misrepresentation to the Mortgagee's actual loss.
---------------------------------------------- -----------------------------------------------------------------------
105 Walgreens Drug Store The Mortgage Loan Documents limit recourse for waste to intentional
00 Xxxxxxxxx Xxxxxxx waste.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 45
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
68 Xxxx Xxxx Corporate Center Each of the Mortgage Loans is structured for tax purposes as an IDOT,
116 00 Xxxx Xxxxxx under which the guarantors of the IDOT own the related Mortgaged
106 YBI Building Properties.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 47
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
118 000 Xxxx Xxxxxx The Mortgage Loan Documents only require the Mortgagor to provide
operating statements and a rent roll on an annual basis so long as
Mortgaged Property is 100% occupied, but otherwise require the
Mortgagor to provide such reports on a quarterly basis if the
Mortgaged Property is not 100% occupied.
---------------------------------------------- -----------------------------------------------------------------------
115 000 Xxxx Xxxxxx The Mortgage Loan Documents only require the Mortgagor to provide
operating statements on an annual basis so long as the Mortgaged
Property is 100% occupied by the County of Los Angeles, but otherwise
require the Mortgagor to provide such reports on a quarterly basis if
the Mortgaged Property is not 100% occupied by the County of Los
Angeles.
---------------------------------------------- -----------------------------------------------------------------------
23 The Grove Shopping Center The Mortgage Loan Documents only require annual statements after
securitization.
---------------------------------------------- -----------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 54
---------------------------------------------- -----------------------------------------------------------------------
Loan No. and Name Exception
---------------------------------------------- -----------------------------------------------------------------------
118 000 Xxxx Xxxxxx The Mortgagor is an individual.
115 000 Xxxx Xxxxxx
---------------------------------------------- -----------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE
WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATION 12)
None.
EXHIBIT A
MORTGAGE LOAN SCHEDULE
ZIP
LOAN # PROPERTY NAME ORIGINATOR PROPERTY TYPE ADDRESS CITY COUNTY STATE CODE
11 150 & 200 Meadowlands JPMCB Office 150 and 000 Xxxxxxxxxxx Xxxxxxxx Xxxxxx XX 00000
Parkway Parkway
00 Xxxxxxxxx Xxxxxxx JPMCB Multifamily 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxxxx XX 00000
Drive
16 Xxxxxxx Value Center JPMCB Retail 0000 Xxxxxxxxx 000xx Xxxxx Xxxxx-Xxxx XX 00000
Avenue
21 000 Xxxxxxxx Xxxxxx JPMCB Mixed Use 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
22 1200 Ashwood JPMCB Xxxxxx 0000 Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX 00000
23 The Grove Shopping JPMCB Retail 0000 Xxxx 00xx Xxxxxx Xxxxxxx Xx Xxxx XX 00000
Center Grove
26 Sky Harbor MHP JPMCB Manufactured 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxx Xxxx XX 00000
Housing
31 Sunset Strip Shopping JPMCB Retail 00000 Xxxxxxxxx 00xx Xxxxx Xxxxx-Xxxx XX 00000
Center Xxxxxx
00 Xxxxxxx Xxxxxxx JPMCB Retail 23162 & 00000 Xxx Xxxxxxx Xxxxxx XX 00000
Shopping Center Alisos Boulevard Viejo
38 Reflections by the JPMCB Multifamily 00000 00xx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
Lake Apartments Southeast
00 Xxxx Xxxxx Xxxxxxxxxx XXXXX Multifamily 000 Xxxx Xxxx Xxxxxx Xxxxxxxxx Xxxxxxx XX 00000
43 0000 Xxxxxxxx Xxxxxx JPMCB Xxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
00 Xxxxxx Xxxxx Xxxxxxxxxx XXXXX Multifamily 0000 Xxxxxx Xxxxx Xxxxx Xxxxx Xxxxxx Xxxx XX 00000
45 Windhaven SC JPMCB Retail 0000-0000 Xxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
Parkway
56 Elm & Xxxxxx Plaza JPMCB Multifamily Various Xxxxxxx Xxx Xxxxxxx XX 00000
Hills
56.01 Xxxxxx Plaza JPMCB Multifamily 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx Xxx Xxxxxxx XX 00000
Hills
56.02 Elm Plaza JPMCB Multifamily 000 Xxxxx Xxx Xxxxx Xxxxxxx Xxx Xxxxxxx XX 00000
Hills
00 Xxxxxx Xxxxx Xxxxxxxxxx XXXXX Multifamily 0000 Xxxxxx Xxxxxx Xxx Xxxxxxx Xxx Xxxxxxx XX 00000
59 Xxxxxx Crossing JPMCB Retail 0000 Xxxxx Xxxxx 000 Xxxxxx Xxxxxxxx XX 00000
Shopping Center
60 Pomona Business Center JPMCB Xxxxxx 000 Xxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
61 Quarry Creek JPMCB Retail 3420 and 0000 Xxxxxx Xxxxxxxxx Xxx Xxxxx XX 00000
Road
62 Tuscan Retail Center JPMCB Retail 6500-6550 XxxXxxxxx Xxxxxx Xxxxxx XX 00000
Boulevard
63 0000 Xxxxxxxxxx Xxxxxx JPMCB Industrial 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxx XX 00000
67 Xxxx Xxxx Corporate JPMCB Industrial 0000 Xxxx Xxxx Xxxxx Xxxxxxxx Xxxxxx XX 00000
Center
71 Roseville Professional JPMCB Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000
Center Xxxxxx
00 Xxxxxx Xxxxxx JPMCB Mixed Use 00000-00000 Xxx Xxxx Xxxxxxx Xxxxx XX 00000
Road
76 Westwood Village JPMCB Retail 0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000
Shopping Center Avenue
79 Scottsdale Wal-Mart JPMCB Retail 00000 Xxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
(Pad #5) Xxxxxxxxx
00 Xxxxxxxxx Xxxxxxxx JPMCB Retail 000 Xxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxx XX 00000
Center
90 Spring Garden Plaza JPMCB Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx XX 00000
Xxxxxx
00 0000 Xxxxx Lincoln JPMCB Industrial 0000 Xxxxx Xxxxxxx Xxxxxxxxxxx Xxxx XX 00000
Xxxxxx Xxxxxx
00 Xxxxxxxxx Xxxxx JPMCB Retail 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx XX 00000
97 Xxxxxxx Office Building JPMCB Xxxxxx 00 Xxxx Xxxx Xxxx Xxxx Xxxxxxxxxx Xxxxxxx XX 00000
Hills
98 000 Xxxxxxxx Xxxxxx JPMCB Retail 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx Xxxxxx XX 00000
99 Tanasbourne Center JPMCB Retail 0000 Xxxxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
Center Drive
102 Largo Landing JPMCB Retail 00000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx XX 00000
103 Walgreens Drug Store JPMCB Retail 00000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000
104 YBI Building JPMCB Office 0000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000
Drive Georges
106 00-000 Xxxxx Oval JPMCB Industrial 00-000 Xxxxx Xxxx Xxxx Xxxx Xxxxxx XX 00000
107 Pahrump Retail Shops JPMCB Retail 000 Xxxxx Xxxxxxx 000 Xxxxxxx Xxx XX 00000
108 0000 Xxxxxx Xxxxxx JPMCB Xxxxxx 0000 Xxxxxx Xxxxxx XxXxxx Xxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxx XXXXX Manufactured 00 XxXxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
Mobile Home Park Housing
111 000 Xxxx Xxxxxx XXXXX Xxxxxx 000 Xxxx Xxxxxx X0 Xxxxxxxxx Xxxx XX 00000
112 00 Xxxx Xxxxxx XXXXX Xxxxxx 00 Xxxx Xxxxxx Xxxxxxxxx Xxxx Xxxxxxx XX 00000
114 000 Xxxx Xxxxxx XXXXX Xxxxxx 000-000 Xxxx Xxxxxx X0 Xxxxxxxxx Xxx Xxxxxxx XX 00000
000 Xxxxxx Xxxx Storage JPMCB Self Storage 00000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
PRIMARY MASTER
SERVICING SERVICING
MONTHLY ORIGINAL FEE FEE NET
CUTOFF ORIGINAL DEBT MORTGAGER RATE RATE MORTGAGE
LOAN # PROPERTY NAME BALANCE BALANCE SERVICE RATE (%) (%) RATE (%)
11 150 & 200 Meadowlands 24,139,176.27 24,160,000.00 142,529.73 5.8500 0.0100 0.0200 5.8180
Parkway
12 Jefferson Commons 23,900,000.00 23,900,000.00 110,659.21 5.4800 0.0100 0.0200 5.4480
16 Xxxxxxx Value Center 19,700,000.00 19,700,000.00 89,307.38 5.3700 0.0000 0.0200 5.3074
21 000 Xxxxxxxx Xxxxxx 15,750,000.00 15,750,000.00 93,519.80 5.9100 0.0100 0.0200 5.8780
22 1200 Ashwood 15,500,000.00 15,500,000.00 72,421.24 5.5300 0.0100 0.0200 5.4980
23 The Grove Shopping 14,000,000.00 14,000,000.00 78,789.18 5.4200 0.0100 0.0200 5.3880
Center
26 Sky Harbor MHP 12,960,000.00 12,960,000.00 62,086.50 5.6700 0.0100 0.0200 5.6380
31 Sunset Strip Shopping 10,300,000.00 10,300,000.00 46,693.71 5.3700 0.0000 0.0200 5.2780
Center
32 Oaktree Village 10,000,000.00 10,000,000.00 48,159.72 5.7000 0.0100 0.0200 5.6680
Shopping Center
38 Reflections by the 8,750,000.00 8,750,000.00 40,250.00 5.5200 0.0100 0.0200 0.0000
Xxxx Xxxxxxxxxx
00 Xxxx Xxxxx Apartments 8,400,000.00 8,400,000.00 46,437.15 5.2600 0.0100 0.0200 5.2280
43 0000 Xxxxxxxx Xxxxxx 8,250,000.00 8,250,000.00 48,986.56 5.9100 0.0100 0.0200 5.8780
44 Timber Ridge Apartments 7,850,000.00 7,850,000.00 45,561.43 5.7000 0.0100 0.0200 5.6680
45 Windhaven SC 7,832,848.53 7,850,000.00 55,878.14 5.9200 0.0100 0.0200 5.8880
56 Elm & Xxxxxx Plaza 5,000,000.00 5,000,000.00 28,232.80 5.4500 0.0100 0.0200 5.4180
56.01 Xxxxxx Plaza 4,000,000.00 4,000,000.00
56.02 Elm Plaza 1,000,000.00 1,000,000.00
00 Xxxxxx Xxxxx Apartments 4,995,578.30 5,000,000.00 29,178.64 5.7500 0.0100 0.0200 5.7180
59 Xxxxxx Crossing 4,900,000.00 4,900,000.00 29,788.76 6.1300 0.0100 0.0200 6.0480
Shopping Center
60 Pomona Business Center 4,880,000.00 4,880,000.00 22,801.01 5.5300 0.0100 0.0200 5.4980
61 Quarry Creek 4,800,000.00 4,800,000.00 29,961.45 6.3800 0.0000 0.0200 6.2580
62 Tuscan Retail Center 4,700,000.00 4,700,000.00 27,278.82 5.7000 0.0000 0.0200 5.6080
63 0000 Xxxxxxxxxx Xxxxxx 4,609,673.80 4,625,000.00 38,704.29 5.8700 0.0100 0.0200 5.8380
67 Xxxx Xxxx Corporate 4,100,000.00 4,100,000.00 24,239.95 5.8700 0.0000 0.0200 5.7780
Center
71 Roseville Professional 3,996,924.32 4,000,000.00 24,706.79 6.2800 0.0100 0.0200 6.2480
Xxxxxx
00 Xxxxxx Xxxxxx 3,850,000.00 3,850,000.00 20,135.41 6.1900 0.0100 0.0200 6.1580
76 Westwood Village 3,600,000.00 3,600,000.00 22,844.03 5.8400 0.0100 0.0200 5.8080
Shopping Center
79 Scottsdale Wal-Mart 3,376,000.00 3,376,000.00 20,219.13 5.9900 0.0100 0.0200 5.9580
(Pad #5)
85 Westfield Shopping 3,050,000.00 3,050,000.00 18,443.46 6.0800 0.0100 0.0200 5.9980
Center
90 Spring Garden Plaza 2,840,000.00 2,840,000.00 13,149.46 5.4800 0.0100 0.0200 5.4480
92 6500 North Lincoln 2,725,000.00 2,725,000.00 15,902.36 5.7500 0.0100 0.0200 5.7180
Xxxxxx
00 Xxxxxxxxx Xxxxx 2,693,720.79 2,700,000.00 18,196.87 6.4800 0.0100 0.0200 6.4480
97 Xxxxxxx Office Building 2,500,001.00 2,500,001.00 13,011.58 6.1600 0.0100 0.0200 6.1280
98 000 Xxxxxxxx Xxxxxx 2,500,000.00 2,500,000.00 14,764.49 5.8600 0.0100 0.0200 5.8280
99 Tanasbourne Center 2,497,987.45 2,500,000.00 15,166.02 6.1100 0.0100 0.0200 6.0780
102 Largo Landing 2,397,989.78 2,400,000.00 14,327.55 5.9600 0.0100 0.0200 5.9280
103 Walgreens Drug Store 2,350,000.00 2,350,000.00 19,577.61 5.8000 0.0000 0.0200 5.7080
000 XXX Xxxxxxxx 2,246,299.80 2,250,000.00 13,547.80 6.0400 0.0100 0.0200 6.0080
000 00-000 Xxxxx Oval 2,100,000.00 2,100,000.00 15,288.35 6.2000 0.0100 0.0200 6.1680
107 Pahrump Retail Shops 1,648,799.57 1,650,000.00 10,407.43 6.4800 0.0100 0.0200 6.4480
108 0000 Xxxxxx Xxxxxx 1,613,629.51 1,615,000.00 9,589.49 5.9100 0.0100 0.0200 5.8780
110 Magnolia Crossing 1,456,000.00 1,456,000.00 6,778.32 5.5100 0.0100 0.0200 5.4780
Xxxxxx Xxxx Xxxx
000 000 Xxxx Xxxxxx 1,374,089.09 1,380,000.00 13,040.91 6.0000 0.0100 0.0200 5.9680
000 00 Xxxx Xxxxxx 1,357,763.44 1,360,000.00 8,188.89 6.0400 0.0100 0.0200 6.0080
000 000 Xxxx Xxxxxx 1,292,119.62 1,300,000.00 14,205.24 5.6500 0.0100 0.0200 5.6180
000 Xxxxxx Xxxx Storage 1,195,000.00 1,195,000.00 9,947.14 6.3800 0.0100 0.0200 6.3480
ACCRUAL REM. MATURITY ARD AMORT REM. GROUND
LOAN # PROPERTY NAME TYPE TERM TERM DATE DATE TERM AMORT LEASE ARD ARD STEP UP (%)
11 150 & 200 Meadowlands Actual/360 120 119 8/1/14 8/1/14 360 359 No No
Parkway
00 Xxxxxxxxx Xxxxxxx Actual/360 60 58 7/7/09 7/7/09 360 360 No No
16 Xxxxxxx Value Center Actual/360 120 120 9/1/14 9/1/14 360 360 No No
21 000 Xxxxxxxx Xxxxxx Actual/360 120 120 9/1/14 9/1/14 360 360 No No
22 1200 Ashwood Actual/360 84 84 9/1/11 9/1/11 360 360 No No
23 The Grove Shopping Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Center
26 Sky Harbor MHP Actual/360 120 120 9/1/14 9/1/14 360 360 No No
31 Sunset Strip Shopping Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Center
32 Oaktree Village Actual/360 60 59 8/1/09 8/1/09 360 360 No No
Shopping Center
38 Reflections by the Actual/360 121 121 10/1/14 10/1/14 360 360 No No
Lake Apartments
41 Park Plaza Apartments Actual/360 120 120 9/1/14 9/1/14 360 360 No No
43 0000 Xxxxxxxx Xxxxxx Actual/360 120 120 9/1/14 9/1/14 360 360 No No
44 Timber Ridge Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Apartments
45 Windhaven SC 30/360 240 239 8/1/24 8/1/24 240 239 No No
56 Elm & Xxxxxx Plaza Actual/360 120 120 9/1/14 9/1/14 360 360 No No
56.01 Xxxxxx Plaza No
56.02 Xxx Xxxxx Xx
00 Xxxxxx Xxxxx Actual/360 120 119 8/1/14 8/1/14 360 359 No No
Apartments
59 Xxxxxx Crossing Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Shopping Center
60 Pomona Business Center Actual/360 84 83 8/1/11 8/1/11 360 360 No No
61 Quarry Creek Actual/360 180 180 9/1/19 9/1/19 360 360 No No
62 Tuscan Retail Center Actual/360 120 120 9/1/14 9/1/14 360 360 No No
63 0000 Xxxxxxxxxx Xxxxxx Actual/360 180 179 8/1/19 8/1/19 180 179 No No
67 Xxxx Xxxx Corporate Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Center
71 Roseville Actual/360 120 119 8/1/14 8/1/14 360 359 No No
Professional Center
72 Laurel Pointe Actual/360 108 107 8/1/13 8/1/13 360 360 No No
76 Westwood Village Actual/360 120 120 9/1/14 9/1/14 300 300 Fee/Leasehold No
Shopping Center
79 Scottsdale Wal-Mart Actual/360 120 120 9/1/14 9/1/14 360 360 No No
(Pad #5)
85 Westfield Shopping Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Center
90 Spring Garden Plaza Actual/360 84 83 8/1/11 8/1/11 360 360 No No
92 6500 North Lincoln Actual/360 120 120 9/1/14 9/1/14 360 360 No No
Avenue
94 Southside Plaza Actual/360 120 118 7/1/14 7/1/14 300 298 Yes Xx
00 Xxxxxxx Xxxxxx Xxxxxx/000 000 000 8/1/13 8/1/13 360 360 No No
Building
98 000 Xxxxxxxx Xxxxxx Actual/360 120 120 9/1/14 9/1/14 360 360 No No
99 Tanasbourne Center Actual/360 120 119 8/1/14 8/1/14 360 359 No No
102 Largo Landing Actual/360 120 119 8/1/14 8/1/14 360 359 No No
103 Walgreens Drug Store Actual/360 180 180 9/1/19 9/1/19 180 180 No No
104 YBI Building Actual/360 120 118 7/1/14 7/1/14 360 358 No No
000 00-000 Xxxxx Oval Actual/360 240 240 9/1/24 9/1/24 240 240 No No
107 Pahrump Retail Shops Actual/360 120 119 8/1/14 8/1/14 360 359 No No
108 0000 Xxxxxx Xxxxxx Actual/360 120 119 8/1/14 8/1/14 360 359 No No
110 Magnolia Crossing Actual/360 120 119 8/1/14 8/1/14 300 300 No No
Mobile Home Park
111 000 Xxxx Xxxxxx Actual/360 151 150 3/1/17 3/1/17 151 150 No Xx
000 00 Xxxx Xxxxxx Actual/360 120 118 7/1/14 7/1/14 360 358 No No
114 000 Xxxx Xxxxxx Actual/360 120 119 8/1/14 8/1/14 120 119 No No
000 Xxxxxx Xxxx Storage Actual/360 192 192 9/1/20 9/1/20 192 192 No No
ENVIRONMENTAL CROSS- CROSS- DEFEASANCE LETTER OF LOCKBOX
LOAN # PROPERTY NAME POLICY DEFAULTED COLLATERALIZED ALLOWED CREDIT IN PLACE
11 150 & 200 Meadowlands No No No Yes No No
Parkway
12 Jefferson Commons No No No Yes No Yes
16 Xxxxxxx Value Center No No No Yes No Yes
21 000 Xxxxxxxx Xxxxxx No No No Yes No No
22 1200 Ashwood No No No Yes No Yes
23 The Grove Shopping No No No No No No
Center
26 Sky Harbor MHP No No No Yes No No
31 Sunset Strip Shopping No No No Yes No Yes
Center
32 Oaktree Village No No No Yes No No
Shopping Center
38 Reflections by the No No No Yes No No
Lake Apartments
41 Park Plaza Apartments No No No Yes No No
43 0000 Xxxxxxxx Xxxxxx No No No Yes No No
44 Timber Ridge No No No Yes No No
Apartments
45 Windhaven SC No No No No No No
56 Elm & Xxxxxx Plaza No No No Yes No No
56.01 Xxxxxx Plaza No No No
56.02 Xxx Xxxxx Xx Xx Xx
00 Xxxxxx Xxxxx No No No Yes No No
Apartments
59 Xxxxxx Crossing No No No Yes No No
Shopping Center
60 Pomona Business Center No No No Yes No No
61 Quarry Creek No No No No No No
62 Tuscan Retail Center No No No Yes No No
63 0000 Xxxxxxxxxx Xxxxxx No No No Yes No No
67 Xxxx Xxxx Corporate No No No Yes Yes No
Center
71 Roseville No No No Yes No No
Professional Center
72 Laurel Pointe No No No Yes No No
76 Westwood Village No No No Yes No No
Shopping Center
79 Scottsdale Wal-Mart No No No Yes No No
(Pad #5)
85 Westfield Shopping No No No Yes No No
Center
90 Spring Garden Plaza No No No Yes No No
92 6500 North Lincoln No No No Yes No Yes
Avenue
94 Southside Plaza No No No Yes Yes No
97 Xxxxxxx Office No No No Yes No No
Building
98 000 Xxxxxxxx Xxxxxx No No No Yes No No
99 Tanasbourne Center No No No Yes No No
102 Largo Landing No No No Yes No Yes
103 Walgreens Drug Store No No No Yes No No
104 YBI Building No No No Yes No No
000 00-000 Xxxxx Oval No No No Yes No No
107 Pahrump Retail Shops No No No Yes No No
108 0000 Xxxxxx Xxxxxx No No No Yes No No
110 Magnolia Crossing No No No Yes No No
Mobile Home Park
111 000 Xxxx Xxxxxx No Yes Yes Yes No Yes
112 77 West Street No No Xx Xx Xx Xx
000 000 Xxxx Xxxxxx Xx Yes Yes Yes No No
000 Xxxxxx Xxxx Storage No No No Yes No No
LOAN # PROPERTY NAME UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
ENG. ENV. TI/LC RE TAX INS. OTHER
HOLDBACK AMT RESERVE RESERVE RESERVE RESERVE RESERVE RESERVE
11 150 & 000 Xxxxxxxxxxx
Xxxxxxx
00 Xxxxxxxxx Xxxxxxx 22,500 425,387
16 Xxxxxxx Value Center 257,875 80,376 185,400
21 000 Xxxxxxxx Xxxxxx 194,743
22 1200 Ashwood 1,000,000.00 1,300,000 130,850 8,811
23 The Grove Shopping 300,000.00
Center
26 Sky Harbor MHP 75,000 506,076 7,974
31 Sunset Strip Shopping 94,439 56,402
Center
32 Oaktree Village 37,500 47,224 4,151
Shopping Center
38 Reflections by the 28,372 21,167
Lake Apartments
41 Park Plaza Apartments 89,747 66,352 28,930
43 0000 Xxxxxxxx Xxxxxx 175,243
00 Xxxxxx Xxxxx 45,869 8,200
Apartments
45 Windhaven SC 50,000.00 1,000
00 Xxx & Xxxxxx Xxxxx 5,038
56.01 Xxxxxx Plaza
56.02 Xxx Xxxxx
00 Xxxxxx Xxxxx 25,533 10,609
Apartments
59 Xxxxxx Crossing 20,052 3,668
Shopping Center
00 Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxx Xxxxx 31,422 109,912
62 Tuscan Retail Center 79,424.00 80,029 3,983
63 0000 Xxxxxxxxxx Xxxxxx 61,681 22,010
67 Xxxx Xxxx Corporate 18,062 2,757
Center
71 Roseville 75,000 78,601 4,362
Professional Center
00 Xxxxxx Xxxxxx 9,875 9,701 9,643
76 Westwood Village 39,534 2,000 80,000
Shopping Center
79 Scottsdale Wal-Mart 25,277 811 176,350
(Pad #5)
85 Westfield Shopping 14,775 2,246
Center
90 Spring Xxxxxx Xxxxx
00 0000 Xxxxx Xxxxxxx 76,211 9,433
Xxxxxx
00 Xxxxxxxxx Xxxxx 37,700 2,911
97 Xxxxxxx Office 100,000 8,554 2,031
Building
98 000 Xxxxxxxx Xxxxxx 50,700
99 Tanasbourne Center 500,000.00 4,892 1,700
102 Largo Landing 25,000.00 6,250 30,211 1,358
000 Xxxxxxxxx Xxxx Xxxxx
000 XXX Xxxxxxxx 100,000 43,493 2,281
000 00-000 Xxxxx Oval 13,889
107 Pahrump Retail Shops 250,000.00 2,029 354
108 6733 Xxxxxx Street 7,500 6,487 794
110 Magnolia Crossing 14,058 2,010 2,103
Mobile Home Park
111 000 Xxxx Xxxxxx
000 00 Xxxx Xxxxxx 60,000 17,711 1,895
114 000 Xxxx Xxxxxx
000 Xxxxxx Xxxx Storage 10,742 2,282
LOAN # PROPERTY NAME MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX TI/LC RE TAX INS. OTHER
UPFRONT OTHER RESERVE DESCRIPTION RESERVE RESERVE RESERVE RESERVE RESERVE
11 150 & 200 Meadowlands 1,766 8,333
Parkway
00 Xxxxxxxxx Xxxxxxx 10,438 44,778
16 Xxxxxxx Value Center One year rent for Ramco Trading 2,285 7,639 23,443 7,307
Corp.
21 000 Xxxxxxxx Xxxxxx 36,490
22 1200 Ashwood 2,670 26,170 2,937
00 Xxx Xxxxx Xxxxxxxx
Xxxxxx
00 Xxx Xxxxxx MHP 2,259 51,715 2,658
31 Sunset Strip Shopping 708 3,417 8,585 5,640
Center
32 Oaktree Village 1,369 6,685 11,806 2,075
Shopping Center
38 Reflections by the 4,030 14,186 5,292
Xxxx Xxxxxxxxxx
00 Xxxx Xxxxx Apartments 4,157 6,032 7,233
43 0000 Xxxxxxxx Xxxxxx 29,323
00 Xxxxxx Xxxxx 3,000 17,071
Apartments
45 Windhaven SC
56 Elm & Xxxxxx Plaza Termite Inspection Reserve
56.01 Xxxxxx Plaza
56.02 Xxx Xxxxx
00 Xxxxxx Xxxxx 000 5,107 816
Apartments
59 Xxxxxx Crossing 3,300 5,013
Shopping Center
60 Pomona Business Center 2,947 4,181
61 Quarry Creek Pacific Dental Improvement 6,284
Reserve (80,945.10), Xxxxx
Fargo TI Reserve (28,967.10)
00 Xxxxxx Xxxxxx Xxxxxx
00 0000 Xxxxxxxxxx Avenue 813 8,333 8,291 2,446
67 Xxxx Xxxx Corporate 1,667 4,516 306
Center
71 Roseville 900 13,100
Professional Center
00 Xxxxxx Xxxxxx 000 1,111 3,234 1,071
76 Westwood Village Tenant Lease Holdback Funds 1,389 6,019 4,568 2,000
Shopping Center
79 Scottsdale Wal-Mart Occupancy Reserve 92 1,609 2,298 270
(Pad #5)
85 Westfield Shopping 2,775 3,694
Center
00 Xxxxxx Xxxxxx Xxxxx 750 2,172
92 6500 North Lincoln 718 2,248 10,684 000
Xxxxxx
00 Xxxxxxxxx Xxxxx 177 1,960 4,712 970
97 Xxxxxxx Office 344 1,666 4,277 508
Building
98 000 Xxxxxxxx Xxxxxx 8,470
99 Tanasbourne Center 144 1,000 1,223 425
102 Largo Landing 352 1,258 2,746 679
103 Walgreens Drug Xxxxx
000 XXX Xxxxxxxx 000 2,083 3,954 326
000 00-000 Xxxxx Oval 5,353
107 Pahrump Retail Shops 150 1,000 676 177
108 0000 Xxxxxx Xxxxxx 115 1,250 1,622 199
000 Xxxxxxxx Xxxxxxxx 203 155 526
Mobile Home Park
111 000 Xxxx Xxxxxx
000 00 Xxxx Xxxxxx 160 1,667 1,610 271
114 000 Xxxx Xxxxxx
000 Xxxxxx Xxxx Storage 276 977 254
LOAN # PROPERTY NAME OTHER
MONTH GRACE LOAN
DESCRIPTION PERIOD GROUP
11 150 & 200 Meadowlands 7 1
Parkway
00 Xxxxxxxxx Xxxxxxx 0 2
16 Xxxxxxx Value Center 7 1
21 000 Xxxxxxxx Xxxxxx 8 1
22 1200 Ashwood 10 1
23 The Grove Shopping
Center 7 1
26 Sky Harbor MHP 7 1
31 Sunset Strip Shopping 7 1
Center
32 Oaktree Village 7 1
Shopping Center
38 Reflections by the 10 0
Xxxx Xxxxxxxxxx
00 Xxxx Xxxxx Xxxxxxxxxx 0 2
43 0000 Xxxxxxxx Xxxxxx 8 1
44 Timber Ridge 10 2
Apartments
45 Windhaven SC 7 1
56 Elm & Xxxxxx Plaza 7 1
56.01 Xxxxxx Plaza 1
56.02 Xxx Xxxxx 0
00 Xxxxxx Xxxxx 7 1
Apartments
59 Xxxxxx Crossing 7 1
Shopping Center
60 Pomona Business Center 7 1
61 Quarry Creek 7 1
62 Tuscan Retail Center 7 1
63 0000 Xxxxxxxxxx Xxxxxx 7 1
67 Xxxx Xxxx Corporate 7 1
Center
71 Roseville 10 1
Professional Center
72 Xxxxxx Xxxxxx 0 0
00 Xxxxxxxx Xxxxxxx 7 1
Shopping Center
79 Scottsdale Wal-Mart 7 1
(Pad #5)
85 Westfield Shopping 7 1
Center
90 Spring Xxxxxx Xxxxx 0 0
00 0000 Xxxxx Xxxxxxx 7 0
Xxxxxx
00 Xxxxxxxxx Xxxxx 7 1
97 Xxxxxxx Xxxxxx 0 0
Xxxxxxxx
00 000 Xxxxxxxx Xxxxxx 8 1
99 Tanasbourne Center 7 1
102 Largo Landing 7 1
103 Walgreens Drug Xxxxx 0 0
000 XXX Xxxxxxxx 7 1
106 00-000 Xxxxx Oval 7 1
107 Pahrump Retail Shops 7 1
108 0000 Xxxxxx Xxxxxx 7 1
110 Magnolia Crossing 7 1
Mobile Home Park
111 000 Xxxx Xxxxxx 7 1
112 77 West Street 7 1
114 244 East Avenue 7 1
000 Xxxxxx Xxxx Storage 7 1
