EXHIBIT 99.2
Artesia Mortgage Loan Purchase Agreement
This Mortgage Loan Purchase Agreement, dated as of November 1, 2004
(the "Agreement"), is entered into between Artesia Mortgage Capital Corporation
(the "Seller") and Wachovia Commercial Mortgage Securities, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
November 1, 2004, among the Purchaser, as depositor, Wachovia Bank, National
Association, as master servicer (in such capacity, the "Master Servicer") and as
special servicer with respect to the 000 Xxxxxx Xxxx Xxxxx Xxxx, Xxxxxxx
Partners, LLC, as special servicer except with respect to the 000 Xxxxxx Xxxx
Whole Loan (each of Clarion Partners, LLC and Wachovia Bank, National
Association in such capacity, as the context requires, the "Special Servicer"),
and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized terms used
but not defined herein (including the Schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $184,399,376 (the "Artesia Mortgage Capital
Corporation 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 Artesia Mortgage Capital Corporation 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 $ 1,154,979,900 (subject
to a variance of plus or minus 5.0%). The purchase and sale of the Mortgage
Loans shall take place November 10, 2004, or such other date as shall be
mutually acceptable to the parties to this Agreement (the "Closing Date"). The
consideration (the "Aggregate Purchase Price") for the Mortgage Loans shall be
equal to (i) [__]% of the Artesia Mortgage Capital Corporation Mortgage Loan
Balance as of the Cut-Off Date, plus (ii) $[____], which amount represents the
amount of interest accrued on the Artesia Mortgage Capital Corporation 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 Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected on or 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
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2004-C15" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(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
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 to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2004-C15", 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 "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2004-C15", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution 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 or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC Financing
Statements in favor of the originator of such Mortgage Loan or in favor of
any assignee prior to the Trustee (but only to the extent the Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, if there is an effective UCC Financing Statement and continuation
statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, an original UCC Amendment, in form
suitable for filing in favor of Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2004-C15, as assignee", or in
blank;
(ix) an original or copy of (a) any Ground Lease and (b) any loan
guaranty, indemnity, ground lessor estoppel or environmental insurance
policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan; and
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable transfer or
assignment documents.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing and
in good standing under the laws of the State of Delaware and possesses all
requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights in general and by general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate 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 material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Aggregate Purchase Price. 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.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) shall be held by the Trustee until the earlier of (x) the
date on which the Master Servicer certifies to the Trustee and the Controlling
Class Representative that such exception has been cured (or the Trustee
certifies the same to the Controlling Class Representative), at which time such
funds or letter of credit, as applicable, shall be returned to the Seller and
(y) thirty (30) Business Days or, if the Controlling Class Representative has
extended the cure period, forty-five (45) Business Days after the Closing Date;
provided, however, that if such exception is not cured within such thirty (30)
Business Days or forty-five (45) Business Days, as the case may be, (A) in the
case of clause (2), the Trustee shall retain the funds or letter of credit, as
applicable, or (B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan and any letter of credit will be returned to the
Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach shall materially and adversely affect the value of the
applicable Mortgage Loan, the interest of the Trust therein or the interests of
any Certificateholder, cure such Document Defect or Breach, as the case may be,
in all material respects, which shall include payment` of actual or provable
losses and any Additional Trust Fund Expenses directly resulting from any such
Document Defect or Breach or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the Master Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith; provided, however, that unless the
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, such Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan); and provided, further, that
with respect to such additional 90-day period the Seller shall have delivered an
officer's certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided, further, that no Document Defect (other
than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground
Lease or any letter of credit) shall be considered to materially and adversely
affect the value of the related Mortgage Loan, the interests of the Trust
therein or the interests of any Certificateholder 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 significant
servicing obligations. For a period of two years from the Closing Date, so long
as there remains any Mortgage File relating to a Mortgage Loan as to which there
is any uncured Document Defect or Breach, the Seller shall provide the officer's
certificate to the Trustee described above as to the reasons such Document
Defect or Breach remains uncured and as to the actions being taken to pursue
cure. Notwithstanding the foregoing, the delivery of a commitment to issue a
policy of lender's title insurance as described in clause 12 of Schedule I
hereof in lieu of the delivery of the actual policy of lender's title insurance
shall not be considered a Document Defect or Breach with respect to any Mortgage
File if such actual policy of insurance is delivered to the Trustee or a
Custodian on its behalf not later than the 90th day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. 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 included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred by the Purchaser in connection with such modification or
accommodation (including but not limited to recoverable attorney fees) shall be
paid by 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 or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (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 Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement. Nothing in this Agreement shall
prohibit the Purchaser or its assigns (including the Master Servicer and/or the
Special Servicer) from pursuing any course of action authorized by the Pooling
and Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
90 days of the Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made in
full, this paragraph describes the sole remedy available to the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf regarding any such Breach and the Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's articles of association or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and 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, the Initial
Purchasers and their respective counsel in their reasonable discretion, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) A letter shall have been received from the independent
accounting firm of KPMG LLP in form satisfactory to the Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
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 or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Specified Portions of the Memorandum and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A thereto, the diskette which accompanies the Prospectus Supplement
(insofar as such diskette is consistent with such Annex A) and the following
sections of the Prospectus Supplement (exclusive of any statements in such
sections that purport to summarize the servicing and administration provisions
of the Pooling and Servicing Agreement): "Summary of Prospectus Supplement--The
Parties--The Mortgage Loan Sellers," "Summary of Prospectus Supplement--The
Mortgage Loans," "Risk Factors--The Mortgage Loans," and "Description of the
Mortgage Pool--General," "--Mortgage Loan History," "--Certain Terms and
Conditions of the Mortgage Loans," "--Assessments of Property Condition,"
"--Co-Lender Loans," "--Additional Mortgage Loan Information," "--Twenty Largest
Mortgage Loans," "--The Mortgage Loan Sellers," "--Underwriting Standards," and
"--Representations and Warranties; Repurchases and Substitutions." The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement and the first and second full paragraphs on page
"iii" of the Memorandum.
(e) The certificate of incorporation of the Seller, and an original
or copy of a certificate of good standing of the Seller issued by the State of
Delaware not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (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.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Preliminary Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing, (B) any items similar to Computational Materials or ABS Term Sheets
forwarded by the Seller to the Initial Purchasers, or in any revision or
amendment of or supplement to any of the foregoing or (C) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B) and (C) above being
defined as the "Disclosure Material"), or (ii) arise out of or are based upon
the omission or alleged omission to state therein (in the case of Computational
Materials and ABS Term Sheets, when read in conjunction with the Prospectus
Supplement, in the case of items similar to Computational Materials and ABS Term
Sheets, when read in conjunction with the Memorandum, and in the case of any
summaries, reports, documents, written or computer materials, or other
information contemplated in clause (C) above, when read in conjunction with the
Memorandum) a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; but, with respect to the Disclosure Material described in
clauses (A) and (B) of the definition thereof, only if and to the extent that
(I) any such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement and the Preliminary Prospectus
Supplement, including without limitation Annex A thereto, the Memorandum, the
Diskette, any Computational Materials and ABS Term Sheets with respect to the
Registered Certificates and any items similar to Computational Materials and ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission of a material fact occurring in, or with respect
to, such Disclosure Material, is with respect to, or arises out of or is based
upon an untrue statement or omission of a material fact with respect to, the
information regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties and/or the Seller set forth in the Specified Portions of
each of the Prospectus Supplement, the Preliminary Prospectus Supplement and the
Memorandum, (III) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 or (IV) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon any other written information concerning the characteristics
of the Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties furnished to the Purchaser, the Underwriters or the Initial
Purchasers by the Seller; provided that the indemnification provided by this
Section 7 shall not apply to the extent that such untrue statement or omission
of a material fact was made as a result of an error in the manipulation of, or
in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties set forth in the Data File or Annex A to the Prospectus
Supplement or the Preliminary Prospectus Supplement to the extent such
information was not materially incorrect in the Data File or such Annex A, as
applicable, including without limitation the aggregation of such information
with comparable information relating to the Other Mortgage Loans.
Notwithstanding the foregoing, the indemnification provided in this Section 7(a)
shall not inure to the benefit of any Underwriter or Initial Purchaser (or to
the benefit of any person controlling such Underwriter or Initial Purchaser)
from whom the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if (x) the subject
untrue statement or omission or alleged untrue statement or omission made in any
Disclosure Material (exclusive of the Prospectus or any corrected or amended
Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum (in either case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus or Memorandum (in either case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the written confirmation of the sale of such Certificates to such person, and
(z) in the case of a corrected or amended Prospectus or Memorandum, such
Underwriter or Initial Purchaser received written notice of such correction or
amendment prior to the written confirmation of such sale. The Seller shall,
subject to clause (c) below, reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity will be in addition to any liability which the Seller may
otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-108944 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated October
29, 2004, as supplemented by the prospectus supplement dated October 29, 2004
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the prospectus
supplement dated October 14, 2004, relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated October 29, 2004, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class A-3, Class A-4, Class B, Class C and Class D Certificates;
"Non-Registered Certificates" shall mean the Certificates other than the
Registered Certificates; "Computational Materials" shall have the meaning
assigned thereto in the no-action letter dated May 20, 1994 issued by the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co.
Incorporated, and Xxxxxx Structured Asset Corporation and the no-action letter
dated May 27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the "Xxxxxx
Letters"); "ABS Term Sheets" shall have the meaning assigned thereto in the
no-action letter dated February 17, 1995 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (the "PSA Letter"
and, together with the Xxxxxx Letters, the "No-Action Letters"); "Diskette"
shall mean the diskette or compact disc attached to each of the Prospectus and
the Memorandum; and "Data File" shall mean the compilation of information and
data regarding the Mortgage Loans covered by the Agreed Upon Procedures Letters
dated November 5, 2004 and rendered by KPMG LLP (a "hard copy" of which Data
File was initialed on behalf of the Seller and the Purchaser).
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchasers, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchasers, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchasers, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchasers and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Artesia Mortgage Capital
Corporation Mortgage Loan Balance represents as of the Cut-Off Date Pool
Balance): (i) the costs and expenses of printing and delivering the Pooling and
Servicing Agreement and the Certificates; (ii) the costs and expenses of
printing (or otherwise reproducing) and delivering a preliminary and final
Prospectus, Term Sheet and Memorandum relating to the Certificates; (iii) the
initial fees, costs, and expenses of the Trustee (including reasonable
attorneys' fees); (iv) the filing fee charged by the Securities and Exchange
Commission for registration of the Certificates so registered; (v) the fees
charged by the Rating Agencies to rate the Certificates so rated; (vi) the fees
and disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller with respect to numerical information in respect of the
Mortgage Loans and the Certificates included in the Prospectus, the Memorandum
and any related Computational Materials or ABS Term Sheets, including in respect
of the cost of obtaining any "comfort letters" with respect to such items; (vii)
the reasonable out-of-pocket costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or "Blue
Sky" laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any "Blue
Sky" survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Underwriters or Initial Purchasers; provided,
however, Seller shall pay (or shall reimburse the Purchaser to the extent that
the Purchaser has paid) the expense of recording any assignment of Mortgage or
assignment of Assignment of Leases as contemplated by Section 2 hereof with
respect to the Seller's Mortgage Loans. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of 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, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. 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 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. 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 15. 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 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 17. 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 18. 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 and the Initial Purchasers (each as intended third
party beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, 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 19. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 21. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge," such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
------
ARTESIA MORTGAGE CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxxx Xxxxx
Title: Vice President
Address for Notices:
0000 XX Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
---------
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
General Mortgage Representations and Warranties
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring such
Mortgage Loan free and clear of any and all liens, pledges, charges,
security interests or any other ownership interests of any nature
encumbering such Mortgage Loan. Upon consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller will
have validly and effectively conveyed to the Purchaser all legal and
beneficial interest in and to such Mortgage Loan (other than those
rights to servicing and related compensation as reflected in the
Mortgage Loan Schedule) free and clear of any pledge, lien or security
interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a
document separate from the Mortgage) and other agreement executed by
the related Mortgagor in connection with such Mortgage Loan is legal,
valid and binding obligation of the related Mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its
terms, except (i) that certain provisions contained in such Mortgage
Loan documents are or may be unenforceable in whole or in part under
applicable state or federal laws, but neither the application of any
such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a
whole and such Mortgage Loan documents taken as a whole are enforceable
to the extent necessary and customary for the practical realization of
the rights and benefits afforded thereby and (ii) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other
Person. With respect to any Mortgaged Property that has tenants, there
exists as either part of the Mortgage or as a separate document, an
assignment of leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of
the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each
case, with respect to the enforceability of any provisions requiring
the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and
binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and
Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth in
paragraph (5) above and the following title exceptions (each such title
exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, water
charges, sewer rents and assessments not yet due and payable, (b)
covenants, conditions and restrictions, rights of way, easements and
other matters of public record, none of which, individually or in the
aggregate, materially and adversely interferes with the current use of
the Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in the applicable
policy described in paragraph (12) below or appearing of record, none
of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (e) the right of tenants
(whether under ground leases, space leases or operating leases) at the
Mortgaged Property to remain following a foreclosure or similar
proceeding (provided that such tenants are performing under such
leases) and (f) if such Mortgage Loan is cross-collateralized with any
other Mortgage Loan, the lien of the Mortgage for such other Mortgage
Loan, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the
related Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing
and recording), in all public places necessary to perfect a valid
security interest in all items of personal property located on the
Mortgaged Property that are owned by the Mortgagor and either (i) are
reasonably necessary to operate the Mortgaged Property or (ii) are (as
indicated in the appraisal obtained in connection with the origination
of the related Mortgage Loan) material to the value of the Mortgaged
Property (other than any personal property subject to a purchase money
security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or
equivalent documents related to and delivered in connection with the
related Mortgage Loan establish and create a valid and enforceable lien
and priority security interest on such items of personalty except as
such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditor's rights generally, or
by general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law). Notwithstanding any
of the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent
that possession or control of such items or actions other than the
filing of UCC Financing Statements are required in order to effect such
perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior
to the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties
would first be payable thereon and (b) the date on which enforcement
action is entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the
Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely
the value of such Mortgaged Property as security for the Mortgage Loan
and to the Seller's actual knowledge as of the Cut-Off Date there was
no proceeding pending or, based solely upon the delivery of written
notice thereof from the appropriate condemning authority, threatened
for the total or partial condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of
principal (as set forth on the Mortgage Loan Schedule) is insured by an
ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable jurisdiction,
insuring the Seller, its successors and assigns, subject only to the
Title Exceptions; the mortgagee or its successors or assigns is the
sole named insured of such policy; such policy is assignable without
consent of the insurer and will inure to the benefit of the Trustee as
mortgagee of record; is in full force and effect upon the consummation
of the transactions contemplated by this Agreement; all premiums
thereon have been paid; no claims have been made under such policy and
the Seller has not done anything, by act or omission, and the Seller
has no actual knowledge of any matter, which would impair or diminish
the coverage of such policy. The insurer issuing such policy is either
(x) a nationally-recognized title insurance company or (y) qualified to
do business in the jurisdiction in which the related Mortgaged Property
is located to the extent required; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not
available) (a) access to public road or (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to
the related Mortgaged Property in the jurisdiction in which such
Mortgaged Property is located, and with respect to a fire and extended
perils insurance policy, is in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the
outstanding principal balance of the Mortgage Loan, and in any event,
the amount necessary to prevent operation of any co-insurance
provisions; and, except if such Mortgaged Property is operated as a
mobile home park, is also covered by business interruption or rental
loss insurance, in an amount at least equal to 12 months of operations
of the related Mortgaged Property, all of which was in full force and
effect with respect to each related Mortgaged Property; and, as of the
Cut-Off Date, to the actual knowledge of the Seller, all insurance
coverage required under each Mortgage, which insurance covers such
risks and is in such amounts as are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property in
the jurisdiction in which such Mortgaged Property is located, is in
full force and effect with respect to each related Mortgaged Property;
all premiums due and payable through the Closing Date have been paid;
and no notice of termination or cancellation with respect to any such
insurance policy has been received by the Seller; and except for
certain amounts not greater than amounts which would be considered
prudent by an institutional commercial and/or multifamily mortgage
lender with respect to a similar Mortgage Loan and which are set forth
in the related Mortgage, any insurance proceeds in respect of a
casualty loss, will be applied either (i) to the repair or restoration
of all or part of the related Mortgaged Property or (ii) the reduction
of the outstanding principal balance of the Mortgage Loan, subject in
either case to requirements with respect to leases at the related
Mortgaged Property and to other exceptions customarily provided for by
prudent institutional lenders for similar loans. The Mortgaged Property
is also covered by comprehensive general liability insurance against
claims for personal and bodily injury, death or property damage
occurring on, in or about the related Mortgaged Property, in an amount
customarily required by prudent institutional lenders. An architectural
or engineering consultant has performed an analysis of each of the
Mortgaged Properties located in seismic zone 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475 year lookback with a 10% probability of
exceedance in a 50 year period. If the resulting report concluded that
the PML would exceed 20% of the amount of the replacement costs of the
improvements, earthquake insurance on such Mortgaged Property was
obtained by an insurer rated at least A-:V by A.M. Best Company or
"BBB-" (or the equivalent) from S&P or "Baa3" (or the equivalent) from
Xxxxx'x. If the Mortgaged Property is located in Florida or within 25
miles of the coast of Texas, Louisiana, Mississippi, Alabama, Georgia,
North Carolina or South Carolina such Mortgaged Property is insured by
windstorm insurance in an amount at least equal to the lesser of (i)
the outstanding principal balance of such Mortgage Loan and (ii) 100%
of the full insurable value, or 100% of the replacement cost, of the
improvements located on the related Mortgaged Property.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect to
non-payment, 10 days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee
to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so.
14. (A) Other than payments due but not yet 30 days or more delinquent, to
the Seller's actual knowledge, based upon due diligence customarily
performed with the servicing of comparable mortgage loans by prudent
institutional lenders, there is no material default, breach, violation
or event of acceleration existing under the related Mortgage or the
related Mortgage Note, and to the Seller's actual knowledge no event
(other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure
period, would constitute a material default, breach, violation or event
of acceleration, provided, however, that this representation and
warranty does not address or otherwise cover any default, breach,
violation or event of acceleration that specifically pertains to any
matter otherwise covered by any other representation and warranty made
by the Seller in any paragraph of this Schedule I and (B) the Seller
has not waived any material default, breach, violation or event of
acceleration under such Mortgage or Mortgage Note, except for a written
waiver contained in the related Mortgage File being delivered to the
Purchaser, and no such waiver has been granted since the date upon
which the due diligence file related to the applicable Mortgage Loan
was delivered to Clarion Partners, LLC, and pursuant to the terms of
the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File no Person or party other than the holder
of such Mortgage Note may declare any event of default or accelerate
the related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3)of the Code (without regard to Treasury
Regulations Sections 1.860G-2(a)(3) or 1.860G-2(f)(2)), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds
of such Mortgage Loan were used to acquire, improve or protect the
portion of such commercial or multifamily residential property that
consists of an interest in real property (within the meaning of
Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and such
interest in real property was the only security for such Mortgage Loan
as of the Testing Date (as defined below), or (2) the fair market value
of the interest in real property which secures such Mortgage Loan was
at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of
the previous sentence, (1) the fair market value of the referenced
interest in real property shall first be reduced by (a) the amount of
any lien on such interest in real property that is senior to the
Mortgage Loan, and (b) a proportionate amount of any lien on such
interest in real property that is on a parity with the Mortgage Loan,
and (2) the "Testing Date" shall be the date on which the referenced
Mortgage Loan was originated unless (a) such Mortgage Loan was modified
after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (b) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has
been subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest
such "significant modification" occurred.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no actual knowledge and has
received no notice of any material adverse environmental condition or
circumstance affecting such Mortgaged Property that was not disclosed
in such report(s). If any such environmental report identified any
Recognized Environmental Condition (REC), as that term is defined in
the Standard Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM),
with respect to the related Mortgaged Property and the same have not
been subsequently addressed in all material respects, then either (i)
an escrow of 100% or more of the amount identified as necessary by the
environmental consulting firm to address the REC is held by the Seller
for purposes of effecting same (and the borrower has covenanted in the
Mortgage Loan documents to perform such work), (ii) the related
borrower or other responsible party having financial resources
reasonably estimated to be adequate to address the REC is required to
take such actions or is liable for the failure to take such actions, if
any, with respect to such circumstances or conditions as have been
required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation,
a qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or updates
that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have
been delivered to or disclosed to the environmental insurance carrier
or insurance broker issuing such policy prior to the issuance of such
policy. The Mortgage Loan documents require the borrower to comply with
all applicable environmental laws and each Mortgagor has agreed to
indemnify the mortgagee for any losses resulting from any material,
adverse environmental condition or failure of the Mortgagor to abide by
such laws or has provided environmental insurance.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render
the rights and remedies of the holder thereof adequate for the
practical realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar law affecting the right of creditors and the
application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the Co-Lender
Loans) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related Mortgaged
Property, each related Mortgage or loan agreement contains provisions
for the acceleration of the payment of the unpaid principal balance of
such Mortgage Loan if, without complying with the requirements of the
Mortgage or loan agreement, (a) the related Mortgaged Property, or any
controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death of a
member, general partner or shareholder of the related Borrower and
transfers of less than a controlling interest (as such term is defined
in the related Mortgage Loan documents) in a mortgagor, issuance of
non-controlling new equity interests, transfers among existing members,
partners or shareholders in the Mortgagor or an affiliate thereof,
transfers among affiliated Mortgagors with respect to Crossed Loans or
multi-property Mortgage Loans or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan (such as
pledges of ownership interests that do not result in a change of
control) or a substitution or release of collateral within the
parameters of paragraph (26) below), or (b) the related Mortgaged
Property or controlling interest in the borrower is encumbered in
connection with subordinate financing by a lien or security interest
against the related Mortgaged Property, other than any existing
permitted additional debt. The Mortgage Loan documents require the
borrower to pay all reasonable costs incurred by the Mortgagor with
respect to any transfer, assumption or encumbrance requiring lender's
approval.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security intended to be
provided by such Mortgage and no such waiver, modification, alteration,
satisfaction, impairment, cancellation, subordination or recission has
occurred since the date upon which the due diligence file related to
the applicable Mortgage Loan was delivered to Clarion Capital, LLC.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any
manner which materially and adversely affects the value of the Mortgage
Loan or materially interferes with the security intended to be provided
by such Mortgage, and, except with respect to Mortgage Loans (a) which
permit defeasance by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" as defined in the Investment Company Act of 1940, as
amended, sufficient to pay the Mortgage Loans (or portions thereof) in
accordance with their terms, (b) where a release of the portion of the
Mortgaged Property was contemplated at origination and such portion was
not considered material for purposes of underwriting the Mortgage Loan,
(c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price
that represents adequate consideration for such Mortgaged Property or
the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in compliance
with REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will not
have a material adverse affect on the underwritten value of the
security for the Mortgage Loan or that were not allocated to any value
in the underwriting during the origination of the Mortgage Loan, the
terms of the related Mortgage do not provide for release of any portion
of the Mortgaged Property from the lien of the Mortgage except in
consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from governmental
authorities, a legal opinion, an endorsement to the related title
policy, or based upon other due diligence considered reasonable by
prudent commercial conduit mortgage lenders in the area where the
applicable Mortgaged Property is located, as of the date of origination
of such Mortgage Loan and as of the Cut-Off Date, there are no material
violations of any applicable zoning ordinances, building codes and land
laws applicable to the Mortgaged Property or the use and occupancy
thereof which (i) are not insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted
in the applicable jurisdiction, or a law and ordinance insurance policy
or (ii) would have a material adverse effect on the value, operation or
net operating income of the Mortgaged Property. The Mortgage Loan
documents require the Mortgaged Property to comply with all applicable
laws and ordinances.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination
of each Mortgage Loan, none of the material improvements which were
included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building restriction
lines of such property (except Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's
use and operation of such Mortgaged Property (unless affirmatively
covered by title insurance) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material and adverse
extent (unless affirmatively covered by title insurance).
29. With respect to at least 95% of such Seller's Mortgage Loans (by
balance) having a Cut-Off Date Balance in excess of 1% of the Initial
Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or
Mortgaged Properties, as applicable, and assets incidental to its
ownership and operation of such Mortgaged Property, and to hold itself
out as being a legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as
of the Cut-Off Date, there was no pending action, suit or proceeding,
or governmental investigation of which it has received notice, against
the Mortgagor or the related Mortgaged Property the adverse outcome of
which could reasonably be expected to materially and adversely affect
such Mortgagor's ability to pay principal, interest or any other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for complied as of the
date of origination with, or is exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan that is
cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or, if so
located, the Mortgagor is required to maintain or the mortgagee
maintains, flood insurance with respect to such improvements and such
policy is in full force and effect in an amount no less than the lesser
of (i) the original principal balance of the Mortgage Loan, (ii) the
value of such improvements on the related Mortgaged Property located in
such flood hazard area or (iii) the maximum allowed under the related
federal flood insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans
by prudent commercial and multifamily mortgage lending institutions
with respect to the related geographic area and properties comparable
to the related Mortgaged Property, as of the date of origination of the
Mortgage Loan, the related Mortgagor, the related lessee, franchisor or
operator was in possession of all material licenses, permits and
authorizations then required for use of the related Mortgaged Property
by the related Mortgagor, and, as of the Cut-Off Date, the Seller has
no actual knowledge that the related Mortgagor, the related lessee,
franchisor or operator was not in possession of such licenses, permits
and authorizations. The Mortgage Loan documents require the borrower to
maintain all such licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor accepts responsibility
for any loss incurred due to fraud on the part of the Mortgagor and/or
other intentional material misrepresentation. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related
Mortgagor and an additional guarantor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of rents
collected in advance or received by the related Mortgagor after the
occurrence of an event of default and not paid to the Mortgagee or
applied to the Mortgaged Property in the ordinary course of business,
misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon
possession of the Mortgaged Property as required under applicable state
law, the Assignment of Leases set forth in the Mortgage or separate
from the related Mortgage and related to and delivered in connection
with each Mortgage Loan establishes and creates a valid, subsisting and
enforceable lien and security interest in the related Mortgagor's
interest in all leases, subleases, licenses or other agreements
pursuant to which any Person is entitled to occupy, use or possess all
or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (1) no
earlier than two years after the Closing Date and (2) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note. Such
Mortgage Loan was not originated with the intent to collateralize a
REMIC offering with obligations that are not real estate mortgages. In
addition, if such Mortgage contains such a defeasance provision, it
provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the
Mortgagor (including rating agencies' fees, accounting fees and
attorneys' fees), and provide that the related Mortgagor must deliver
(or otherwise, the Mortgage Loan documents contain certain provisions
pursuant to which the lender can require) (a) an accountant's
certification as to the adequacy of the defeasance collateral to make
payments under the related Mortgage Loan for the remainder of its term,
(b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) assurances from the Rating
Agencies that the defeasance will not result in the withdrawal,
downgrade or qualification of the ratings assigned to the Certificates.
Notwithstanding the foregoing, some of the Mortgage Loan documents may
not affirmatively contain all such requirements, but such requirements
are effectively present in such documents due to the general obligation
to comply with the REMIC Provisions and/or deliver a REMIC Opinion of
Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none
of the Mortgaged Properties is encumbered, and none of the Mortgage
Loan documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or
of equal priority with, or superior to, the lien of the related
Mortgage (other than Title Exceptions, taxes, assessments and contested
mechanics and materialmens liens that become payable after the Cut-Off
Date of the related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan; and such
appraisal satisfied either (A) the requirements of the "Uniform
Standards of Professional Appraisal Practice" as adopted by the
Appraisal Standards Board of the Appraisal Foundation, or (B) the
guidelines in Title XI of the Financial Institutions Reform, Recovery
and Enforcement Act or 1989, in either case as in effect on the date
such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. The related Mortgage Loan documents require the Mortgagor to provide the
mortgagee with certain financial information at the times required under
the related Mortgage Loan documents.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. With respect to each Mortgage Loan secured by a leasehold interest (except
with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the
following with respect to the related Ground Lease:
(a) Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than 30 days after the Closing Date and such Ground Lease
permits the interest of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date.
(b) Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee under the leasehold estate and its assigns without
the consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Closing Date).
(c) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors or
assigns, except termination or cancellation if (i) an event of default occurs
under the Ground Lease, (ii) notice thereof is provided to the mortgagee and
(iii) such default is curable by the mortgagee as provided in the Ground Lease
but remains uncured beyond the applicable cure period.
(d) Such Ground Lease is in full force and effect and, to the actual
knowledge of the Seller, at the Closing Date other than payments due but not yet
30 days or more delinquent (i) there is no material default, and (ii) there is
no event which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a material default under such Ground
Lease.
(e) The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee to
the mortgagee. The Ground Lease or ancillary agreement further provides that no
notice given is effective against the mortgagee unless a copy has been given to
the mortgagee in a manner described in the Ground Lease or ancillary agreement.
(f) The Ground Lease (i) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or (ii) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Mortgaged Property is subject.
(g) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the Ground Lease) to cure any curable default under such Ground
Lease before the lessor thereunder may terminate such Ground Lease.
(h) Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the lessee's
rights under the Ground Lease) that extends not less than 20 years beyond the
Stated Maturity Date.
(i) Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment or defeasance of the outstanding principal balance of the Mortgage Loan,
together with any accrued interest (except in cases where a different allocation
would not be viewed as commercially unreasonable by any commercial mortgage
lender, taking into account the relative duration of the Ground Lease and the
related Mortgage and the ratio of the market value of the related Mortgaged
Property to the outstanding principal balance of such Mortgage Loan).
(j) The Ground Lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
lender.
(k) The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason, including
the rejection of the Ground Lease in bankruptcy.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exceptions to Rep 8
-------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1131 Walgreen's - Lancaster, OH The tenant has a right of first
010-1130 Walgreen's - Anderson, IN refusal to purchase the Mortgaged
010-1133 Walgreen's - Cincinnati, OH Property. The right of first refusal
010-1129 Walgreen's - Milford, OH is subordinate to the mortgage and is
not exercisable in a foreclosure sale.
--------------------------------------------------------------------------------
010-1015 Medical Arts Building Several tenants have first rights to
purchase their leased premises if the
borrower elects to condominiumize the
Mortgaged Property. The Mortgage Loan
documents prohibit the borrower from
converting the Property to a
condominium.
--------------------------------------------------------------------------------
Exceptions to Rep 13
--------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
All Loans All insurance requirements specified
under each Mortgage may not as of the
date of origination or thereafter have
been required to be satisfied in every
respect; however, the coverages
specifically enumerated in
Representation 13 were in place at
origination, and to Seller's actual
knowledge, remain in place except as
otherwise indicated in the exceptions
to this Representation 13.
--------------------------------------------------------------------------------
010-1131 Walgreen's - Lancaster, OH For each Mortgage Loan listed to the
010-1130 Walgreen's - Anderson, IN left, the lender has accepted self
010-1133 Walgreen's - Cincinnati, OH insurance from the Walgreens tenant.
010-1129 Walgreen's - Milford, OH Although neither Walgreens nor the
borrower is obligated under the
Mortgage Loan documents to maintain
business interruption or rental loss
coverage under the terms of the lease,
the tenant's obligation to pay rent
does not xxxxx after a casualty during
the term of the mortgage loan and
tenant is also responsible for
effectuating the repair and restoration
of the Mortgaged Property in accordance
with the terms of the lease.
--------------------------------------------------------------------------------
010-1136 Edison Pad Sites - Liberty For each Mortgage Loan listed to the
Bank left, the borrower is the lessor under
010-1145 Edison Pad Sites - Applebee's a ground lease and is not required to
maintain hazard insurance or business
interruption insurance. Under the terms
of the ground lease, the lessee is
required to maintain hazard insurance,
but is not required to maintain
business interruption or rental loss
coverage.
--------------------------------------------------------------------------------
010-1119 Lake View Commercial Park For each Mortgage Loan listed to the
010-1134 Power Park Commercial Center left, the insurance policies
maintained have co-insurance
provisions. However, the properties are
recent construction (2002-2003) and the
amount of insurance provided meets or
exceeds the insurable value as
determined by the appraiser and the
actual hard costs for property's
construction. The borrower and two warm
body guarantors are liable to the
lender for losses incurred due to
breach or failure to perform or comply
with any of the insurance provisions of
the loan documents.
--------------------------------------------------------------------------------
010-1128 Lake Buena Vista Factory For each Mortgage Loan listed to the
Stores-Phase II left, the borrower is not required to
010-1126 Campus Walk Apartments maintain windstorm insurance on the
Mortgaged Property although it is
located in Florida. However, the
borrower has chosen to maintain
windstorm insurance and the Mortgaged
Property is located more than 25 miles
from the coast.
--------------------------------------------------------------------------------
Exceptions to Rep 17
--------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1136 Edison Pad Sites - Liberty These loans are cross-collateralized
Bank and cross-defaulted. Each mortgaged
010-1145 Edison Pad Sites - Applebee's property is security for both loans.
--------------------------------------------------------------------------------
Exceptions to Representation 23
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1111 Marina Corporate Center 1. Owners of beneficial interests in
entities that are members of the
Tenants in Common (as well as any
direct or indirect owners thereof) may
freely transfer beneficial interests
in such entity without Lender
consent. This would permit transfers
of interests one tier removed from the
actual member owners of each Tenant in
Common.
2. Tenants in Common may transfer their
entire interest in the property to
another existing Tenant in Common.
3. Each of the sponsors may transfer
their required ownership interest to a
specifically identified REIT.
--------------------------------------------------------------------------------
010-1135 Garfield Ridge Center The borrower is indebted to its parent
company for unsecured loans having an
aggregate balance of approximately
$489,905 at the time of origination of
the Mortgage Loan.
--------------------------------------------------------------------------------
010-1120 Bay Vista Office Building The borrower is indebted to certain of
its equity owners and parties related
to the equity owners in an aggregate
balance not to exceed $2,000,000 until
November 1, 2004, and in an aggregate
amount not to exceed $494,750 after
November 1, 2004.
--------------------------------------------------------------------------------
010-1119 Lake View Commercial Park The borrower is indebted to a member
for unsecured loans having an aggregate
balance of approximately $650,000 at
the time of origination of the Mortgage
Loan.
--------------------------------------------------------------------------------
010-1150 IRS Building - Fresno, CA With respect to the loan listed to the
left, transfers of interest in the
related borrower are permitted to
certain specified and other qualified
transferees pursuant to the terms and
subject to the satisfaction of certain
conditions as set forth in the
Mortgage Loan documents.
Additionally, a transfer of the
Mortgaged Property to a specified
transferee is permitted subject to the
satisfaction of certain conditions as
set forth in the Mortgage Loan
documents.
--------------------------------------------------------------------------------
010-1134 Power Park Commercial Center The borrower is indebted to members for
unsecured loans having an aggregate
balance of approximately $590,359 at
the time of origination of the Mortgage
Loan.
--------------------------------------------------------------------------------
010-1153 One Chasewood The loan documents permit future
mezzanine debt of up to $850,000.00 to
be secured by up to 49% of the limited
partner interests in the borrower.
With respect to such mezzanine debt,
the mortgage loan documents require
that (a) such mezzanine debt will be
permitted to have a maturity date of
on or before November 11, 2012, or on
or after November 11, 2016 and (b) the
mezzanine lender will enter into an
intercreditor agreement with Lender.
--------------------------------------------------------------------------------
Exceptions to Rep 26
--------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1136 Edison Pad Sites - Liberty No release of one property will be
Bank permitted in connection with a
010-1145 Edison Pad Sites - Applebee's defeasance or an assumption of one
loan unless either (a) both loans are
being simultaneously defeased or
assumed or (b) the following conditions
are satisfied:
(i) Lender has received a rating agency
confirmation from each rating agency
involved in the securitization;
(ii) the debt service coverage ratio
for each loan shall be at least 1.25 to
1.00;
(iii) the loan-to-value ratio, based on
a then-current appraisal, for the
remaining loan is not greater than 80%;
and
(iv) on a trailing 12 month basis, the
property to be released has an economic
occupancy of at least 95%.
In order to meet condition (ii) above,
Borrower may deposit cash collateral
with Lender.
--------------------------------------------------------------------------------
Exceptions to Representation 35
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1131 Walgreen's - Lancaster, OH For each of the Mortgage Loans to the
left, the lender has accepted self
insurance from the Walgreens tenant for
the required flood insurance policies.
--------------------------------------------------------------------------------
Exceptions to Representation 37
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1126 Campus Walk Apartments The municipality with jurisdiction
over the Mortgaged Property does not
have any record of an issuance of a
certificate of occupancy for the
Mortgaged Property. However, the
municipality issued a letter stating
that it assumes the structure on the
Mortgaged Property was built in
compliance with the codes applicable
at the time.
--------------------------------------------------------------------------------
Exceptions to Representation 40
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
All Loans The borrower is liable to the lender
for losses incurred due to the
misapplication of rents only with
respect to rents received by the
borrower or any guarantor after the
lender makes written demand therefor
pursuant to any loan document.
--------------------------------------------------------------------------------
010-1012 Laurel Place The lender may not make a claim
against the borrower for environmental
matters until it has first attempted
to collect on the environmental
insurance policy obtained by the
borrower for the benefit of the lender
in connection with the origination of
the Mortgage Loan. If the insurer
contests or denies the claim or if the
claim is not covered, the lender is
then entitled to indemnification from
the borrower under the borrower's
environmental indemnity pursuant tot
he Mortgage Loan documents. There is
no environmental indemnitor other than
the borrower.
--------------------------------------------------------------------------------
010-1015 Medical Arts Building The borrower does not guaranty
carveouts due to restrictions resulting
from borrower's bond financing.
However, there is an entity guarantor.
--------------------------------------------------------------------------------
010-1153 One Chasewood There is not a guarantor for this
mortgage loan, however, the borrower is
liable for recourse carevouts.
--------------------------------------------------------------------------------
Exceptions to Representation 43
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
All Loans No Mortgage Loan requires, as a
condition to a defeasance, that the
defeasance be permitted only to
facilitate the disposition or
refinancing of the Mortgaged Property
and not as a part of an arrangement to
collateralize a REMIC offering with
obligations that are not real estate
mortgages.
--------------------------------------------------------------------------------
Exceptions to Rep 46
--------------------------------------------------------------------------------
Loans Description of Exception
--------------------------------------------------------------------------------
010-1136 Edison Pad Sites - Liberty These loans are cross-collateralized
Bank and cross-defaulted. Each mortgaged
010-1145 Edison Pad Sites - Applebee's property is security for both loans.
--------------------------------------------------------------------------------
Exceptions to Representation 47
-------------------------------
--------------------------------------------------------------------------------
Loans Description of Exception
----- ------------------------
--------------------------------------------------------------------------------
010-1015 Medical Arts Building The Mortgaged Property tax parcel
currently includes real property that
is not part of the Mortgaged
Property. A separate tax parcel
application has been filed and the
borrower has covenanted to obtain a
separate tax parcel by August 11,
2005. Additionally, funds sufficient
to pay taxes on the parcel to be
segregated have been escrowed with the
lender by the borrower.
--------------------------------------------------------------------------------
010-1114 CVS - Houston, TX The Mortgaged Property tax parcel
currently includes real property that
is not part of the Mortgaged
Property. Borrower has covenanted to
file a separate tax parcel application
by May 31, 2005 and the borrower has
covenanted to obtain a separate tax
parcel by January 1, 2006.
Additionally, funds sufficient to pay
taxes on the parcel to be segregated
have been escrowed with a title
company by a previous owner.
--------------------------------------------------------------------------------
010-1153 One Chasewood The Mortgaged Property tax parcel is
currently a separate tax parcel, but
does not have a separate tax parcel
identification number. Borrower has
covenanted to obtain a separate tax
parcel identification number by
January 31, 2005. Funds sufficient to
pay taxes on the parcel to be
segregated have been escrowed with the
lender by the borrower.
--------------------------------------------------------------------------------
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan
Loan Number Group Number Property Name
6 1 IRS Building - Fresno, CA
12 1 Marina Corporate Center
15 1 Town Center East Building 1
19 1 Bay Vista Office Building
34 1 One Chasewood
39 1 Lake Buena Vista Xxxxxxx Xxxxxx-Xxxxx XX
00 0 Xxxxxx Xxxxxxxx
00 0 XXX Power Technologies
47 0 Xxxxxx Xxxxx Xxxxxxx Xxxx Building
48 1 Garfield Ridge Commons
00 0 Xxxxxx Xxxxx
00 0 Campus Walk Apartments
62 2 Behren's Lofts
66 1 Lake View Commercial Park
67 1 Walgreens - Lancaster, OH
69 1 CVS - Cedar Park, TX
71 1 CVS - Houston, TX
72 1 Walgreens - Anderson, IN
73 1 Walgreens - Cincinnati, OH
76 1 Walgreens - Milford, OH
80 1 Xxxxxxxxxxx Marketplace Phase III
83 1 Power Park Commercial Center
84 1 Elm Creek Crossing
85 1 Edison Pad Sites - Liberty Bank
87 1 Edison Pad Sites - Applebee's
Mortgage
Loan Number Address City State Zip Code County
6 0000 Xxxxxxxx Xxxxx Xxxxxx XX 00000 Fresno
12 00000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000 Los Angeles
15 000 Xxxxxx Xxxx XX Xxxxxxxx XX 00000 Xxxxxxxx
19 2801, 2815, 2819 & 0000 0xx Xxxxxx Xxxxxxx XX 00000 King
34 00000 Xxxxx Xxxxxxx 000 Xxxxxxx XX 00000 Xxxxxx
39 00000 Xxxxx Xxxxxx Xxxxxxxx Xxxx Xxxxxxx XX 00000 Orange
40 0000 Xxxxxxxxx & 000-000 Xxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000 Atlantic
41 000 Xxxxxxxxxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 Xxxxxxxxxxxx
47 000 Xxxxxxx Xxxx Xxxxxxxxx XX 00000 Lehigh
48 0000-0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
57 0000 Xxxx Xxxxxx Xxxxxx Xxxxx XX 00000 Hillsborough
61 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000 Xxxx
62 000 X. 0xx Xxxxxx Xxxx XX 00000 McLennan
66 0000 XX 000xx Xxxxxx Xxxxx XX 00000 Miami-Dade
67 000 X. Xxxxxxxx Xxxxx Xxxxxxxxx XX 00000 Fairfield
69 0000 X Xxxxxxxxxx Xxxx Xxxxx Xxxx XX 00000 Xxxxxxxxxx
71 0000 XX 0000 Xxxx Xxxxxxx XX 00000 Xxxxxx
72 000 Xxxxx Xxxxxxxxxxxx Xxxx Xxxxxxxx XX 00000 Madison
73 0000 Xxxxxxxxx Xxx Xxxxxxxxxx XX 00000 Xxxxxxxx
76 0000 Xxxxx Xxxxx 00 Xxxxxxx XX 00000 Clermont
80 0000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxx XX 00000 Virginia Beach City
83 0000 XX 00xx Xxxxxx Xxxxxxx Xxxxx XX 00000 Broward
84 00000 Xxxxxxxxx Xxxxx Xxxxxxxx XX 00000 Hennepin
85 0000 Xxxxx 0 Xxxxxx XX 00000 Middlesex
87 0000 Xxxxx 0 Xxxxxx XX 00000 Middlesex
Mortgage Cut-Off Date Monthly P&I
Loan Number Loan Balance ($) Payments ($) Grace Days Mortgage Rate (%) Number of Units
6 46,000,000.00 IO 5.5700% 180,481
12 18,500,000.00 108,903.00 5.8300% 88,215
15 17,910,000.00 98,124.60 5.1800% 99,621
19 16,385,864.69 96,750.31 5.8500% 118,302
34 10,750,000.00 60,364.56 5.4000% 108,196
39 7,484,289.50 42,021.22 5.3800% 54,209
40 7,473,635.95 44,366.61 5.9000% 71,104
41 7,393,082.61 42,155.78 5.5300% 131,925
47 5,600,000.00 34,044.30 6.1300% 57,452
48 5,595,160.83 33,000.95 5.8400% 30,734
57 4,275,000.00 25,411.32 5.9200% 41,228
61 3,889,278.34 23,057.51 5.8700% 174
62 3,885,946.30 22,725.70 5.7600% 57
66 3,297,155.70 19,468.05 5.8500% 32,534
67 3,268,805.39 19,320.57 5.8500% 13,650
69 3,186,932.13 23,785.07 6.3700% 13,813
71 3,097,531.01 18,886.07 6.1500% 13,813
72 3,074,174.25 18,170.18 5.8500% 14,490
73 2,939,429.60 17,373.76 5.8500% 14,560
76 2,694,893.00 15,928.41 5.8500% 14,560
80 2,028,064.37 11,462.47 5.4500% 15,000
83 1,698,553.62 10,083.32 5.9000% 23,900
84 1,573,673.87 9,382.25 5.9400% 8,980
85 1,248,908.65 7,334.41 5.8000% 3,000
87 1,148,995.95 6,747.66 5.8000% 6,000
Mortgage Original Term to Remaining Term to
Loan Number Unit of Measure Maturity or ARD (Mos.) Maturity or ARD (Mos.) Maturity Date or ARD
6 Sq. Ft. 60 60 11/11/09
12 Sq. Ft. 84 81 08/11/11
15 Sq. Ft. 84 84 11/11/11
19 Sq. Ft. 120 119 10/11/14
34 Sq. Ft. 120 120 11/11/14
39 Sq. Ft. 78 76 03/11/11
40 Sq. Ft. 120 119 10/11/14
41 Sq. Ft. 120 119 10/11/14
47 Sq. Ft. 84 82 09/11/11
48 Sq. Ft. 120 119 10/11/14
57 Sq. Ft. 120 109 12/11/13
61 Units 120 117 08/11/14
62 Xxxxx 000 000 00/00/00
00 Xx. Xx. 120 119 10/11/14
67 Sq. Ft. 120 118 09/11/14
69 Sq. Ft. 240 238 09/11/24
71 Sq. Ft. 120 119 10/11/14
72 Sq. Ft. 120 118 09/11/14
73 Sq. Ft. 120 118 09/11/14
76 Sq. Ft. 120 118 09/11/14
80 Sq. Ft. 100 99 02/11/13
83 Sq. Ft. 120 119 10/11/14
84 Sq. Ft. 120 119 10/11/14
85 Sq. Ft. 120 119 10/11/14
87 Sq. Ft. 120 119 10/11/14
Mortgage Original Amort Remaining Amort Master Servicing Anticipated
Loan Number Term (Mos.) Term (Mos.) Ground Lease Fee Rate ARD Loans Repayment Date
6 IO IO Fee Simple 0.04000% Y 11/11/09
12 360 360 Fee Simple 0.04000% Y 08/11/11
15 360 360 Fee Simple 0.04000% Y 11/11/11
19 360 359 Fee Simple 0.04000% N
34 360 360 Fee Simple 0.04000% N
39 360 358 Fee Simple 0.04000% N
40 360 359 Fee Simple 0.04000% Y 10/11/14
41 360 359 Fee Simple 0.04000% N
47 360 360 Fee Simple 0.04000% N
48 360 359 Fee Simple 0.04000% N
57 360 360 Fee Simple 0.04000% N
61 360 357 Fee Simple 0.04000% N
62 360 359 Fee Simple 0.04000% N
66 360 359 Fee Simple 0.04000% N
67 360 358 Fee Simple 0.04000% Y 09/11/14
69 240 238 Fee Simple 0.04000% N
71 360 359 Fee Simple 0.04000% N
72 360 358 Fee Simple 0.04000% Y 09/11/14
73 360 358 Fee Simple 0.04000% Y 09/11/14
76 360 358 Fee Simple 0.04000% Y 09/11/14
80 360 359 Fee Simple 0.11000% N
83 360 359 Fee Simple 0.04000% N
84 360 359 Fee Simple 0.04000% N
85 360 359 Fee Simple 0.04000% N
87 360 359 Fee Simple 0.04000% N
Cross Collateralized
Mortgage Additional Loan Environmental and Cross Defaulted Defeasance
Loan Number Interest Rate Originator Insurance Loan Flag Loan
6 Greater of Initial Interest Rate + 4.0%
or TCMYI + 3.75% Artesia N Y
12 Greater of Initial Interest Rate + 4.0%
or TCMYI + 5.55% Artesia N Y
15 Greater of Initial Interest Rate + 4.0%
or TCMYI + 3.6% Artesia N Y
19 Artesia N Y
34 Artesia N Y
39 Artesia N Y
40 Greater of Initial Interest Rate + 4.0%
or TCMYI + 3.3% Artesia N Y
41 Artesia N N
47 Artesia N Y
48 Artesia N N
57 Artesia Y Y
61 Artesia N Y
62 Artesia N Y
66 Artesia N Y
67 Greater of Initial Rate + 4.0% or TCMYI + 5.15% Artesia N Y
69 Artesia N N
71 Artesia N Y
72 Greater of Initial Rate + 4.0% or TCMYI + 5.15% Artesia N Y
73 Greater of Initial Rate + 4.0% or TCMYI + 5.15% Artesia N Y
76 Greater of Initial Rate + 4.0% or TCMYI + 5.15% Artesia N Y
80 Artesia N Y
83 Artesia N Y
84 Artesia N Y
85 Artesia N Edison Pad Sites Y
87 Artesia N Edison Pad Sites Y
Mortgage Interest Interest
Loan Number Early Defeasance Secured by LC Accrual Method Reserve Loan (Y/N) Lockbox
6 N N Actual/360 Y Day 1
12 N N Actual/360 Y Day 1
15 N N Actual/360 Y Day 1
19 N N Actual/360 Y
34 N N Actual/360 Y
39 N N Actual/360 Y
40 N N Actual/360 Y Day 1
41 N N Actual/360 Y Springing
47 N N Actual/360 Y Day 1
48 N N Actual/360 Y
57 N N Actual/360 Y
61 N N Actual/360 Y
62 N Y 30/360 N
66 N N Actual/360 Y
67 N N Actual/360 Y Springing
69 N N Actual/360 Y
71 N N Actual/360 Y
72 N N Actual/360 Y Springing
73 N N Actual/360 Y Springing
76 N N Actual/360 Y Springing
80 N N Actual/360 Y
83 N N Actual/360 Y
84 N N Actual/360 Y
85 N N Actual/360 Y
87 N N Actual/360 Y
Mortgage Annual Deposit to Initial Deposit to Capital
Loan Number Replacement Reserve Improvements Reserve Initial TI/LC Escrow Ongoing TI/LC Footnote
6 36,096
12 17,643 617,505
15 19,924
19 26,026 500,000 (1)
34 21,594 209,454 (1)
39 8,131 (1)
40 14,221 43,750 (1)
41 19,789 500,000 (1)
47 11,490 (1)
48 4,610 100,000 (1)
57 8,246 150,000 (1)
61 43,500
62 11,400 21,250
66 6,507 (1)
67
69
71
72
73
76
80
83 3,585 (1)
84 1,347 (1)
85
87
(1) In addition to any such escrows funded at loan closing for potential
TI/LC, these Mortgage Loans require funds to be escrowed during some or
all of the loan term for TI/LC expenses, which may be incurred during the
loan term. In certain instances, escrowed funds may be released to the
borrower upon satisfaction of certain leasing conditions.
