1998-C2
Daiwa Real Estate Finance Corp.
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 1, 1998 (the
"Agreement"), is between Xxxxxxx Xxxxx Mortgage Investors, Inc., a Delaware
corporation (the "Company"), and Daiwa Real Estate Finance Corp., a Delaware
corporation (the "Mortgage Loan Seller"). The Mortgage Loan Seller agrees to
sell, and the Company agrees to purchase, the mortgage loans (the "Mortgage
Loans") described in, and set forth in, the Mortgage Loan Schedule attached as
Exhibit A to this Agreement (the "Mortgage Loan Schedule"). The Company intends
to deposit the Mortgage Loans and other assets into a trust (the "Trust") and
cause the creation of a series of certificates to be known as Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series 1998-C2
(the "Certificates"), evidencing beneficial ownership interests in the Mortgage
Loans and other assets (including, without limitation, other mortgage loans),
under a Pooling and Servicing Agreement, to be dated as of March 1, 1998 (the
"Pooling and Servicing Agreement"), among the Company, as depositor, First Union
National Bank, as master servicer (the "Servicer"), CRIIMI MAE Services Limited
Partnership, as special servicer (the "Special Servicer"), and Norwest Bank
Minnesota, National Association, as trustee (the "Trustee"). Capitalized terms
used but not otherwise defined herein shall have the respective meanings given
to them in the Pooling and Servicing Agreement without giving effect to any
amendment thereto unless the Mortgage Loan Seller has given its consent to such
amendment in writing and signed by a duly authorized officer of the Mortgage
Loan Seller.
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall consist of a cash amount equal to (i) 100%
of the outstanding principal balance of the Mortgage Loans as of the Cut-Off
Date plus (ii) interest accrued on the Mortgage Loans at the related Mortgage
Rate up to but excluding the Closing Date. The Purchase Price amount shall be
payable by the Company to the Mortgage Loan Seller on March 27, 1998 or such
other date as shall be mutually acceptable to the parties hereto (the "Closing
Date") in immediately available funds. The closing for the purchase and sale of
the Mortgage Loans shall take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York time),
on the Closing Date.
On the Closing Date, the Mortgage Loan Seller shall sell, transfer, assign,
set over and convey to the Company, without recourse, and the Company shall
purchase, all the right, title and interest of the Mortgage Loan Seller in and
to the Mortgage Loans, including all interest and principal due on or with
respect to the Mortgage Loans after the Cut-Off Date, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies. All
scheduled payments of interest and principal due before the Cut-Off Date
but collected on or after the Cut-Off Date, and recoveries of interest and
principal collected before the Cut-Off Date, shall belong to, and be promptly
remitted to the Mortgage Loan Seller. The Company hereby directs the Mortgage
Loan Seller, and the Mortgage Loan Seller hereby agrees, to deliver to each of
the Trustee, the Master Servicer and the Special Servicer all documents,
instruments and agreements required to be delivered by the Company to the
Trustee, the Master Servicer and the Special Servicer under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01 and such other documents, instruments and agreements as the Company
or the Trustee, the Master Servicer and the Special Servicer shall reasonably
request. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans.
2. Representations and Warranties. (a) The Mortgage Loan Seller hereby
represents and warrants to the Company as of the date hereof and as of Closing
Date that:
(i) The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with the necessary corporate power and authority to own its
assets and conduct its business as now being conducted, is duly qualified
as a foreign corporation in good standing in all jurisdictions in which the
ownership or lease of its property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the value of the Mortgage Loans and the
ability of the Mortgage Loan Seller to perform its obligations hereunder,
and the Mortgage Loan Seller has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement by it,
and has the necessary corporate power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated hereby,
including, but not limited to, the power and authority to sell, assign,
transfer, set over and convey the Mortgage Loans in accordance with this
Agreement;
(ii) This Agreement has been duly authorized, executed and delivered by the
Mortgage Loan Seller and assuming the due authorization, execution and
delivery by the Company, will constitute a legal, valid and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the
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enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), or 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 Mortgage Loan
Seller and the performance of its obligations hereunder (1) will not
conflict with any provision of any law or regulation to which the Mortgage
Loan Seller is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
any of the Mortgage Loan Seller's organizational documents or any agreement
or instrument to which the Mortgage Loan Seller is a party or by which it
is bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Seller's assets or property, in each case which would materially and
adversely affect the ability of the Mortgage Loan Seller to carry out the
transactions contemplated by this Agreement; and (2) does not require the
consent of any third party or such consent has been obtained.
(iv) There is no action, suit, proceeding or investigation pending or, to
the knowledge of the Mortgage Loan Seller, threatened against the Mortgage
Loan Seller in any court or by or before any other governmental agency or
instrumentality which, in the Mortgage Loan Seller's good faith and
reasonable judgment, would materially and adversely affect the validity of
the Mortgage Loans or the ability of the Mortgage Loan Seller to enter
into, or which would be likely to impair materially and adversely the
ability of the Mortgage Loan Seller to carry out the transactions
contemplated by, this Agreement;
(v) The Mortgage Loan 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 governmental agency, which default might have
consequences that, in the Mortgage Loan Seller's good faith and reasonable
judgment, would materially and adversely affect the condition (financial or
other) or operations
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of the Mortgage Loan Seller or its properties or might have consequences
that would materially and adversely affect its performance hereunder;
(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 Mortgage Loan Seller of or compliance by the Mortgage
Loan Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those which have been obtained
by the Mortgage Loan Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans by the
Mortgage Loan Seller to the Company is not subject to bulk transfer laws or
any similar statutory provisions in effect in any applicable jurisdiction;
and
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller will report the
transfer of the Mortgage Loans to the Company as a sale of the Mortgage
Loans to the Company. The consideration received by the Mortgage Loan
Seller upon the sale of the Mortgage Loans to the Company will constitute
reasonably equivalent value and fair consideration for the Mortgage Loans.
The Mortgage Loan 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 Company. The Mortgage Loan Seller is not selling the Mortgage Loans to
the Company with any intent to hinder, delay or defraud any of the
creditors of the Mortgage Loan Seller.
(b) The Mortgage Loan Seller hereby makes the representations and
warranties contained Schedule I, Schedule II and Schedule III with respect to
each Mortgage Loan as of the date specified therein or, if no such date is
specified, as of the Closing Date.
3. Notice of Breach; Cure and Repurchase.
(a) Pursuant to the Pooling and Servicing Agreement, the Mortgage Loan
Seller and the Company shall be given notice of any Breach or Document Defect
that materially and adversely affects the value of such Mortgage Loan or the
interests of the holders of the Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage Loan Seller
shall, not later than 90 days from the Mortgage Loan Seller's receipt of notice
of such Breach or
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Document Defect (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 Section
860G(a)(3) of the Internal Revenue Code of 1986, as amended (a "Qualified
Mortgage"), not later than 90 days of any party to this Agreement or to the
Pooling and Servicing Agreement discovering such Document Defect or Breach), if
such Breach or Document Defect shall materially and adversely affect the value
of such Mortgage Loan or the interests of the holders of the Certificates
therein, cure such Document Defect or Breach, as the case may be, in all
material respects 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 the periods hereinafter set forth, repurchase the
affected Mortgage Loan at the applicable Repurchase Price (as defined below);
provided, however, that if such Document Defect or Breach is capable of being
cured but not within such 90-day period, such Document Defect or Breach does not
relate to any Mortgage Loan not being treated as a Qualified Mortgage, and the
Mortgage Loan Seller has commenced and is diligently proceeding with the cure of
such Document Defect or Breach within such 90-day period, the Mortgage Loan
Seller shall (A) with respect to any Breach, have an additional 90-day period to
complete such cure (or failing such cure, to complete such repurchase) and (B)
with respect to any Document Defect, have additional 90-day periods up to but
not exceeding the second anniversary of the Closing Date to complete such cure
(or failing such cure, to complete such repurchase); provided, further, that
with respect to each additional 90-day period, the Mortgage Loan Seller shall
have delivered an Officer's Certificate to the Trustee setting forth the reason
such Document Defect or Breach is not capable of being cured within the initial
90-day period or additional 90-day period, as applicable, and what actions the
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that the Mortgage Loan Seller anticipates that such Document Defect or Breach
will be cured within such additional 90-day period. If the affected Mortgage
Loan is to be repurchased, Mortgage Loan Seller shall remit the Repurchase Price
in immediately available funds to the Trustee. The delivery of a binding
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect 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.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan to be
repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement without giving effect to any amendment
thereto unless the Mortgage Loan Seller has given its consent to
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such amendment in writing and signed by a duly authorized officer of the
Mortgage Loan Seller.
(c) Upon any repurchase of a Mortgage Loan contemplated by Section 3(b)
above, the Trustee, the Servicer and the Special Servicer shall each tender to
the Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller.
(d) This Section 3 of this Agreement provides the sole and exclusive remedy
available to the Company, the Trustee, the Certificateholders, or the Trustee on
behalf of the Certificateholders or any other party, respecting any Document
Defect or any Breach.
(e) Subject to the terms of this Agreement, the Mortgage Loan Seller hereby
acknowledges the assignment by the Company to the Trustee, as trustee under the
Pooling and Servicing Agreement, for the benefit of the Certificateholders, of
the representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to repurchase a Mortgage Loan pursuant to this Section. The
Trustee or its designee may enforce such obligations as provided in Section 8
hereof.
4. Representations, Warranties and Agreements of Company.
The Company hereby represents and warrants to the Mortgage Loan Seller, as
of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full corporate
power and authority to own its assets and conduct its business, is duly
qualified as a foreign corporation in good standing in all jurisdictions in
which the ownership or lease of its property or the conduct of its business
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the ability of the Company to
perform its obligations hereunder, and the Company has taken all necessary
action to authorize the execution, delivery and performance of this
Agreement by it, and has the power and authority to execute, deliver and
perform this Agreement and all the transactions contemplated hereby;
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(ii) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
such enforcement may be limited by bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting the enforcement of creditors'
rights generally and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement by the Company and the
performance of its obligations hereunder will not conflict with any
provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of
the terms, conditions or provisions of any of the Company's organizational
documents or any agreement or instrument to which the Company is a party or
by which it is bound, or any law, rule, regulation, judgment, writ,
injunction, order or decree applicable to the Company, or result in the
creation or imposition of any lien on any of the Company's assets or
property, in each case which would materially and adversely affect the
ability of the Company to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Company, threatened against the Company 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 Company contemplated
herein, or which would be likely to impair materially the ability of the
Company to perform under the terms of this Agreement;
(v) The Company is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Company or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
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(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 Company of or compliance by the Company with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Company; and
(vii) Under GAAP and for federal income tax purposes, the Company will
report the transfer of the Mortgage Loans by the Mortgage Loan Seller to
the Company as a sale of the Mortgage Loans to the Company.
5. Company's Conditions to Closing.
The obligations of the Company under this Agreement shall be subject to the
satisfaction, on the Closing Date, or such other date specified herein, of the
following conditions:
(a) The obligations of the Mortgage Loan Seller required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct in all material respects, and no event shall have occurred which, with
notice or the passage of time, or both, would constitute a material default
under this Agreement.
(b) The Company or its designee shall have received all of the following
closing documents, in such forms as are agreed upon and acceptable to the
Company and in form and substance satisfactory to the Company, the Underwriters
and their respective counsel, duly executed by all signatories other than the
Company as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File, which
Mortgage Files shall be delivered to and held by the Trustee on behalf of
the Company;
(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller dated as of
the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Mortgage Loan Seller's counsel, subject to customary
exceptions and carve-outs, in form and substance reasonably acceptable to
the Company and its counsel and the Rating Agencies, which states in
substance the opinions set forth on Exhibit C hereto, and
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(v) such other documents, certificates and opinions as the Company may
reasonably request to effectuate the transactions contemplated by this
Agreement.
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Company in order
for the Company to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Indemnification and Contribution.
(a) The Mortgage Loan Seller shall indemnify and hold harmless the Company,
the Underwriter, their respective officers and directors, and each person, if
any, who controls the Company or the Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, 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 relating to the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Mortgage Loan Seller
contained in (A) the Prospectus Supplement and the Memorandum (insofar as the
following are incorporated as part of the Memorandum) under the headings
"Summary of the Prospectus Supplement-The Mortgage Pool" or "Summary of the
Prospectus Supplement-Mortgage Loan Sellers", "Risk Factors-The Mortgage Loans"
and "Description of the Mortgage Pool" and on Annex A to the Prospectus
Supplement, the Diskette or, insofar as they are required to be filed as part of
the Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing, or (B) any
items similar to Computational Materials and ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
but, in the case of (i) and (ii), only if and to the extent that any such untrue
statement or alleged untrue statement or omission or alleged omission (I) arises
out of or is based upon an untrue statement or omission with respect to the
Mortgage Loans, the related Mortgagors or the related Mortgaged Properties
contained in the Master Tape (it
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being herein acknowledged that the Master Tape was used to prepare the
Prospectus Supplement including without limitation Annex A thereto, the
Memorandum, the Diskette, the 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) is contained in the information regarding the
Mortgage Loans, the related Mortgagor, the related Mortgaged Property or the
Mortgage Loan Seller set forth in the Prospectus Supplement and the Memorandum
(insofar as the following are incorporated as part of the Memorandum) under the
headings "Summary of the Prospectus Supplement-The Mortgage Pool" or "Summary of
the Prospectus Supplement-Mortgage Loan Sellers", "Risk Factors-The Mortgage
Loans" and "Description of the Mortgage Pool" or on Annex A to the Prospectus
Supplement; provided that the foregoing were provided to the Mortgage Loan
Seller for its review, or (III) arises out of or is based upon a breach of the
representations and warranties of the Mortgage Loan Seller set forth in or made
pursuant to Section 2 (such representations and warranties, together with the
information described in the preceding clauses I and II, the "Mortgage Loan
Seller Information"); provided that the indemnification provided by this Section
6 shall not apply to the extent that such untrue statement or omission was made
as a result of an error in (x) the manipulation of, or (y) any calculations
based upon, or (z) any aggregation (other than an aggregation made in the Master
Tape by the Mortgage Loan Seller) of, the information regarding the Mortgage
Loans, the related Mortgagor, the related Mortgaged Property or the Mortgage
Loan Seller set forth in the Master Tape and Annex A to the Prospectus
Supplement, including without limitation the aggregation of such information
with comparable information relating to the mortgage loans conveyed to the Trust
Fund by Xxxxxxx Xxxxx Mortgage Capital Inc. and Daiwa Finance Corp. (the "Other
Mortgage Loans"). This indemnity agreement will be in addition to any liability
which the Mortgage Loan Seller may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-38073 filed by the Company on Form S-3, including
without limitation exhibits thereto and information incorporated therein by
reference; "Prospectus" shall mean the prospectus dated February 25, 1998, as
supplemented by the prospectus supplement dated March 24, 1998 (the "Prospectus
Supplement"), relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated March
27, 1998, relating to the Non-Registered Certificates; "Registered Certificates"
shall mean the Class A-1, Class A-2, Class B, Class C, Class D, Class E and
Class IO 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,
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Xxxxxxx Xxxxxxxxxx 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 attached
to each of the Prospectus and the Memorandum; and "Master Tape" shall mean the
compilation of information and data regarding the Other Mortgage Loans and the
Mortgage Loans covered by the Independent Accountants' Report on Applying
Agreed-Upon Procedures dated March 24, 1998 and rendered by Deloitte & Touche
LLP (a "hard copy" of which Master Tape was initialed on behalf of the Mortgage
Loan Seller and the Company).
(b) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 6, except to the extent that it has been prejudiced in any
material respect, or from any liability which it may have, otherwise than under
this Section 6. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party for legal or other expenses
incurred by the indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses in accordance with the proviso to the next
preceding sentence (it being understood, however, that the
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indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with one local counsel, if applicable), approved by
the Company, representing the indemnified parties under subsection (a) of this
Section 6 who are parties to such action), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(c) If the indemnification provided for in this Section 6 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 6, then the Mortgage Loan Seller and the Company shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, in such proportion as is appropriate to reflect the relative fault of the
Mortgage Loan Seller on the one hand and the Company on the other in connection
with the statement or omission that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Mortgage Loan Seller or the Company and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Mortgage Loan Seller and the Company agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were to be determined by per capita allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not also guilty of
such fraudulent misrepresentation.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at World Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxxx X. Xxxxxxxx fax number: (212)
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449-7684, or, if sent to the Mortgage Loan Seller, will be mailed, hand
delivered, couriered or sent by facsimile transmission to it at Financial
Square, 00 Xxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention: Xxxxxx Xxxxxxxxx,
fax number: (000) 000-0000, with a copy to the attention of the General Counsel,
fax number: (000) 000-0000.
8. Trust as Beneficiary. The representations, warranties and agreements
made by the Mortgage Loan Seller in this Agreement are made for the benefit of,
and, to the extent they are assigned by the Company to the Trustee under the
Pooling and Servicing Agreement, may be enforced by or on behalf of, the
Trustee, the Servicer or the Special Servicer, as provided in the Pooling and
Servicing Agreement, to the same extent that the Company has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein.
9. Miscellaneous. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person will have any
right or obligation hereunder, other than as provided herein.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Mortgage Loan Seller and the Company submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive the transfer and sale of the Mortgage Loans to the Company and by the
Company to the Trustee notwithstanding any language to the contrary contained in
any endorsement of any Mortgage Loan; provided that the representations,
warranties and agreements shall terminate upon the termination of the Pooling
and Servicing Agreement.
11. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, this Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the Company agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
13. Amendments. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by
-13-
a writing signed by a duly authorized officer of the party against whom
enforcement of such change, waiver, discharge or termination is sought to be
enforced. This Agreement may not be changed or waived in any manner which would
have a material adverse effect on Certificateholders without the prior written
consent of the Trustee.
14. Guaranty.
(a) Daiwa Finance Corp. ("DFC") (i) irrevocably, absolutely and
unconditionally guarantees the prompt payment, as and when due and payable, of
the Repurchase Price and (ii) agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Company, the Trustee, the
Servicer or the Special Servicer in enforcing its rights under this Section 14.
(b) DFC hereby guarantees that the Repurchase Price will be paid strictly
in accordance with the terms of this Agreement and the Pooling and Servicing
Agreement, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Company,
the Trustee, the Servicer or the Special Servicer with respect thereto. DFC
agrees that its guarantee constitutes a guaranty of payment when due and not of
collection, and waives any right to require that any resort be made by the
Company, the Trustee, the Servicer or the Special Servicer to any security held
for payment of the Repurchase Price or for any other reason. The liability of
DFC hereunder shall be absolute and unconditional, irrespective of: (i) any
change in the time, manner or place of payment of, or in any other term in
respect of, all or any of the Repurchase Price (including, without limitation,
any extension for longer than the original period), or any other amendment or
waiver of or consent to any departure from any provision of this Agreement or
the Pooling and Servicing Agreement; and (ii) any release or amendment or waiver
of or consent to any departure from any other guaranty, for all or any of the
Repurchase Price.
(c) This Guaranty (i) is a continuing guaranty and shall remain in full
force and effect until the termination of the Pooling and Servicing Agreement,
(ii) shall continue to be effective or shall be reinstated, as the case may be,
if at any time any payment of any of the Repurchase Price is rescinded or must
otherwise be returned by the Company, the Trustee, the Servicer or the Special
Servicer upon the insolvency, bankruptcy or reorganization of the Mortgage Loan
Seller or otherwise, all as though such payment had not been made, and (iii)
shall be binding upon DFC and its successors and assigns.
(d) DFC hereby waives (i) promptness and diligence, (ii) notice of
acceptance and notice of the incurrence of any obligation to pay the Repurchase
Price, (iii) notice of any action taken by the Company, the Trustee, the
Servicer or the
-14-
Special Servicer or the Mortgage Loan Seller under this Agreement or the Pooling
and Servicing Agreement or under any other agreement or instrument relating
thereto, (iv) all other notices, demands and protests, and all other formalities
of every kind in connection with the enforcement of the obligation to pay the
Repurchase Price or of the obligations of the Mortgage Loan Seller hereunder,
the omission of or delay in which, but for the provisions of this Section 14(d),
might constitute grounds for relieving the Mortgage Loan Seller of its
obligations hereunder, (v) any right to compel or direct the Company, the
Trustee, the Servicer or the Special Servicer to seek payment or recovery of any
amounts owed under this Section 14 from any one particular fund or source, and
(vi) any requirement that the Company, the Trustee, the Servicer or the Special
Servicer protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against any
Person or any collateral. DFC agrees that the Company, the Trustee, the Servicer
or the Special Servicer shall have no obligation to xxxxxxxx any assets in favor
of the Mortgage Loan Seller or against or in payment of any or all of the
Repurchase Price.
(e) DFC hereby irrevocably waives and agrees that it will not exercise any
and all rights which it has or may have at any time or from time to time
(whether arising directly or indirectly by operation of law or contract) to
assert any claim against the Mortgage Loan Seller on account of any payments
made under this Agreement, including, without limitation, any and all existing
and future rights of subrogation, reimbursement, exoneration, contribution
and/or indemnity. If any amount shall be paid to DFC on account of such rights
at any time when all of such obligations to pay the Repurchase Price shall not
have been paid in full, such amount shall be held in trust for the benefit of
the Company, the Trustee, the Servicer or the Special Servicer, shall be
segregated from the other funds of DFC and shall forthwith be paid over to the
Company, the Trustee, the Servicer or the Special Servicer to be applied in
whole or in part by the Company, the Trustee, the Servicer or the Special
Servicer against the Repurchase Price, in accordance with the terms of this
Agreement.
(f) No failure on the part of the Company, the Trustee, the Servicer or the
Special Servicer to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedy provided by law.
[Signature page follows]
-15-
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
DAIWA REAL ESTATE FINANCE CORP.
By: /s/ XXXXXX XXXXXX
------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ XXXXX XXXXXXXX
------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Authorized Signatory
Confirmed and Accepted,
DAIWA FINANCE CORP.
By: /s/ XXXXXX XXXXXX
---------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
Daiwa Real Estate
CONTROL
NUMBER PROPERTY NAME ADDRESS CITY STATE ZIP CODE
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx XX 00000
324 The Wealshire 000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
325 Hampton Inn and Suites 0000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxx 0000 X. Xxxxx Xxxxx Xxxx Xxxxxxx XX 00000
327 Days Inn Hotel 000 Xxxx Xxx Xxxxx Xxxxxx XX 00000
329 Fortunoff 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
000 Xxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000
479 Xxxx Xxxx Portfolio - 0 Xxxx 00xx Xxxxxx 0 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
480 Xxxx Xxxx Portfolio - 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
481 Xxxx Xxxx Portfolio - 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
482 Xxxx Xxxx Portfolio - 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
483 Xxxx Xxxx Portfolio - 000 Xxxxx 000xx Xxxxxx 000 Xxxxx 000xx Xxxxxx Xxxxxx XX 00000
484 Xxxx Xxxx Portfolio - 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
485 244 & 000 Xxxx 00xx Xxxxxx 244 & 000 Xxxx 00xx Xxxxxx Xxx Xxxx XX 00000
488 Xxxx Xxxx Portfolio - 000 Xxxx 000xx Xxxxxx 000 Xxxx 000xx Xxxxxx Xxx Xxxx XX 00000
514 Cedarhaus Apartments 4503-4509 So. Xxxxxx Xxxxxx Xxxxxxxx XX 00000
519 Manayunk Apartments 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxxxx XX 00000
000 Xxxxxxxxxx Xxxxx and Skilled Nursing Center 000 Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
REMAINING
CONTROL CUT-OFF DATE MONTHLY GROSS ----------------- MATURITY/ARD GROUND BALLOON/ARD/
NUMBER BALANCE PAYMENT RATE TERM AMORT DATE LEASE FULLY AMORTIZING
------------------------------------------------------------------------------------------------------------------------------------
314 6,983,194.97 53,010.96 7.780 118 298 01/01/2008 No Balloon
324 15,933,738.61 125,084.67 8.150 116 296 11/01/2007 No Balloon
325 15,946,750.90 120,327.86 7.700 117 297 12/01/2007 No Balloon
326 6,727,535.52 50,763.32 7.700 117 297 12/01/2007 No Balloon
327 2,541,513.44 19,177.25 7.700 117 297 12/01/2007 No Balloon
329 5,902,464.31 73,655.39 8.270 105 118 12/01/2006 Yes Balloon
339 12,478,701.74 87,145.18 7.470 118 358 01/01/2008 No Balloon
479 463,174.78 3,608.94 8.625 117 357 12/01/2007 No Balloon
480 211,622.97 1,648.91 8.625 117 357 12/01/2007 No Balloon
481 224,599.82 1,750.03 8.625 117 357 12/01/2007 No Balloon
482 328,414.86 2,558.93 8.625 117 357 12/01/2007 No Balloon
483 179,679.88 1,400.02 8.625 117 357 12/01/2007 No Balloon
484 339,395.29 2,644.49 8.625 117 357 12/01/2007 No Balloon
485 728,701.66 5,677.87 8.625 117 357 12/01/2007 No Balloon
488 386,311.70 3,010.05 8.625 117 357 12/01/2007 No Balloon
514 369,180.21 2,948.24 8.375 118 298 01/01/2008 No Balloon
519 2,745,629.75 19,877.19 7.250 119 299 02/01/2008 No Balloon
544 13,000,000.00 96,916.04 7.600 180 300 03/01/2013 No Balloon
CONTROL SERVICING MORTGAGE INTEREST CROSS
NUMBER FEES (1) LOAN SELLER SUBSERVICER DEFEASANCE ACCRUAL DEFAULTED
------------------------------------------------------------------------------------------------------------------------------------
314 0.160 Daiwa Real Estate Finance Corp. Collateral Mortgage Yes Actual/360
324 0.095 Daiwa Real Estate Finance Corp. First Union Yes Actual/360
325 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
326 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
327 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
329 0.095 Daiwa Real Estate Finance Corp. First Union Yes Actual/360
339 0.095 Daiwa Real Estate Finance Corp. First Union Yes Actual/360
479 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
480 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
481 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
482 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
483 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
484 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
485 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
488 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
514 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
519 0.095 Daiwa Real Estate Finance Corp. First Union Actual/360
544 0.095 Daiwa Real Estate Finance Corp. First Union Yes Actual/360
(1) Primary and master servicing fee.
EXHIBIT B
FORM OF CERTIFICATE OF AN OFFICER OF
DAIWA REAL ESTATE FINANCE CORP.
I, ______________________, hereby certify that I am an authorized signatory
of Daiwa Real Estate Finance Corp., a Delaware corporation (the "Seller"), and
that, based upon information provided to me by appropriate officers, certify
further as follows, to the best of my knowledge:
The representations and warranties of the Seller in the Mortgage Loan
Purchase Agreement, dated as of March 1, 1998 (the "MLPA") 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.
The Seller has, in all material aspects, complied with all the agreements
and satisfied all the conditions on its part that are required under the MLPA to
be performed or satisfied at or prior to the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1998.
DAIWA REAL ESTATE FINANCE CORP.
By: __________________________________
Name:
Title:
I, ______________________, a ________________ of the Seller, hereby certify
that ______________________ is an authorized signatory of the Seller and that
the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1998.
By: __________________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct its
business as presently conducted by it, to own the Mortgage Loans, and enter into
and perform its obligations under the Mortgage Loan Purchase Agreement.
2. The Mortgage Loan Purchase Agreement has been duly authorized, executed
and delivered by the Mortgage Loan Seller and constitutes the legal, valid and
binding obligations of the Mortgage Loan Seller, enforceable against the
Mortgage Loan Seller in accordance with the terms of the Mortgage Loan Purchase
Agreement, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except to the extent rights to indemnity and contribution may be limited by
applicable law.
3. The execution and delivery of the Mortgage Loan Purchase Agreement by
the Mortgage Loan Seller and the performance of its obligations under the
Mortgage Loan Purchase Agreement will not conflict with any provision of any
federal or State of New York law or regulation to which the Mortgage Loan Seller
is subject, or conflict with, result in a breach of or constitute a default
under any of the terms, conditions or provisions of any of the Mortgage Loan
Seller's organizational documents, or, to our knowledge, any agreement or
instrument to which the Mortgage Loan Seller is a party or by which it is bound,
or any order of a federal or State of New York court, regulatory body,
administrative agency or government body having jurisdiction over the Mortgage
Loan Seller.
4. There is no action, suit, proceeding or investigation pending or
threatened, against the Mortgage Loan Seller in any court or by or before any
other governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by this
Agreement.
5. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase Agreement or the consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, other than
those which have been obtained by the Mortgage Loan Seller.
Xxxxxxx Xxxxx Mortgage Investors, Inc. 1998-C2
SCHEDULE I
(i) Immediately prior to the sale, transfer and assignment of the Mortgage
Loans to the Company, the Mortgage Loan Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan;
(ii) The Mortgage Loan Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, and none of the Mortgage Note, the Mortgage or
any other related loan document prohibits such transfer;
(iii) Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan is, a valid
and binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency legislation), enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium 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), and any lost note affidavit included in the Mortgage File in lieu of
a Mortgage Note does not impair the ability of the holder thereof to enforce the
terms of such Mortgage Note;
(iv) Each related Assignment of Leases, or, if none, the assignment of
leases and rents contained in the related Mortgage creates a valid, collateral
or first priority assignment of, or a valid first priority security interest in,
the right to receive all payments due under the related leases, and no other
person owns any interest therein superior to or of equal priority with the
interest created under such assignment, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the enforcement
of creditors' rights generally, and by the application of the rules of equity;
(v) Each related assignment of Mortgage from the Mortgage Loan Seller to
the Trustee and any related assignment of Assignment of Leases, if any, and
assignment of any other agreement executed in connection with such Mortgage
Loan, from the Mortgage Loan Seller to the Trustee constitutes the legal, valid
and binding assignment from the Mortgage Loan Seller to the Trustee, except as
such enforcement may be limited by bankruptcy, insolvency, 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);
-2-
(vi) Since origination, such Mortgage Loan has not been modified, altered,
satisfied, canceled, subordinated or rescinded, except, in each of the foregoing
instances, by written instruments that are a part of the related Mortgage File,
and, if required, recorded in the applicable public recording office if
necessary to maintain the priority of the lien of the related Mortgage and
security agreements and delivered to the Company, and no material portion of the
related Mortgaged Property has been released from the lien of the related
Mortgage, in each case, in any manner which materially and adversely affects the
value of the Mortgage Loan or materially interferes with the security intended
to be provided by such Mortgage, and, except with respect to those Mortgage
Loans listed on Exhibit I-VI attached hereto which permit defeasance and
substitution of real property collateral, the terms of the related Mortgage do
not provide for release of any portion of the Mortgaged Property from the lien
of the Mortgage in any manner which materially and adversely affects the
security provided by the Mortgaged Property;
(vii) Each related Mortgage is a valid first lien on the related Mortgaged
Property (subject to the matters described in clause (viii) below), and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are insured against by a lender's title insurance policy (as described in
clause (viii) below);
(viii) The lien of each related Mortgage as a first priority lien in the
outstanding principal amount of such Mortgage Loan (as set forth on the Mortgage
Loan Schedule) after all advances of principal 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 Mortgage Loan Seller, its
successors and assigns, subject only to (a) the lien of current real property
taxes, ground rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property, and (c) the exclusions and
exceptions (general and specific) set forth in such policy, none of which,
individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage or with the Mortgagor's ability to pay
its obligations when they become due or materially and adversely affects the
value of the Mortgaged Property; the original holder of the Mortgage, and/or its
successor or assigns, are the sole named insureds under such policy; such policy
is assignable to the Company and the Trustee without the consent of or any
notification to the insurer, and is now in full force and effect
-3-
and will remain so upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy, the Mortgage Loan
Seller has not done anything, by act or omission, and the Mortgage Loan Seller
has no knowledge of any matter, which would impair or diminish the coverage of
such policy;
(ix) The proceeds of such Mortgage Loan have been fully disbursed and there
is no requirement for future advances thereunder and the Mortgage Loan Seller
covenants that it will not make any future advances under the Mortgage Loan to
the related Mortgagor;
(x) The Mortgage Loan Seller has received no notice of any proceeding
pending, nor to the Mortgage Loan Seller's knowledge, threatened, for the total
or partial condemnation of all or any material portion of such Mortgaged
Property, and, to the Mortgage Loan Seller's knowledge, each related Mortgaged
Property is free and clear of any material damage that would affect materially
and adversely the value of such Mortgaged Property as security for the Mortgage
Loan.
(xi) Except as indicated on Exhibit I-XI(A) attached hereto, the related
Mortgagor has represented to the Mortgagee that, as of the date of origination
of such Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, either (a)
such Mortgagor and the lessee and/or operator of the related Mortgaged Property
was in possession of all material licenses, permits and other authorizations
necessary and required by all applicable laws for the conduct of its business
and all such licenses, permits and authorizations were valid and in full force
and effect, or (b) such Mortgagor uses, operates, occupies and maintains the
Mortgaged Property in accordance with all applicable laws and regulations;
(xii) The Mortgage Loan does not have a shared appreciation feature, other
contingent interest feature or (except with respect to those Mortgage Loans
listed on Exhibit I-XII attached hereto (the "ARD Loans")) provide for
hyper-amortization, a negative amortization feature;
(xiii) The Mortgage Loan is a whole loan and no other party holds a
participation interest in such Mortgage Loan;
(xiv) The Mortgage Rate (exclusive of any default interest, late charges,
prepayment premiums or defeasance deposits) of each Mortgage Loan complied as of
the date of origination with, or such Mortgage Loan is exempt from, applicable
state or federal laws, regulations and other requirements pertaining to usury;
any and all other requirements of any federal, state or local laws, including,
without limitation, truth-in-lending, real estate settlement procedures, equal
credit opportunity or disclosure laws, applicable to each
-4-
Mortgage Loan have been complied with as of the date of origination of such
Mortgage Loan;
(xv) All taxes and governmental assessments which would be a lien on the
Property and that prior to the Cut-Off Date became due and owing 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;
(xvi) Except as indicated on Exhibit I-XVI attached hereto, all escrow
deposits and payments required pursuant to the Mortgage Loan are in the
possession, or under the control, of the Mortgage Loan Seller or its agent and
all amounts required to be deposited by the Borrower under the Loan Documents as
of the date hereof have been deposited and all such escrows and deposits have
been conveyed by the Mortgage Loan Seller to the Company and identified as such
with appropriate detail;
(xvii) Except as indicated on Exhibit I-XVII, as of the date of its
origination, each related Mortgaged Property is insured by a fire and extended
perils insurance policy in an amount not less than the lesser of (A) the
outstanding principal balance of the Mortgage Loan and (B) the replacement cost
of the related Mortgaged Property, and in all events the amount necessary to
avoid the operation of any co-insurance provisions with respect to the Mortgaged
Property; with respect to each related Mortgaged Property, the Mortgagor is
required to maintain, for Mortgage Loans greater than $1,000,000, business
interruption insurance (or loss of rents insurance) and comprehensive general
liability insurance in amounts generally required by institutional lenders for
similar properties; all premiums on such insurance policies required to be paid
as of the date hereof have been paid; such insurance policies require prior
notice to the insured and to the Mortgagee of termination or cancellation, and
except for as indicated on Exhibit I-XVII, no such notice has been received;
each related Mortgage or loan agreement obligates the related Mortgagor to
maintain a fire and extended perils insurance and, at such Mortgagor's failure
to do so, authorizes the Mortgagee to maintain such insurance at the Mortgagor's
cost and expense and to seek reimbursement therefor from such Mortgagor;
(xviii) Each Mortgage provides that any insurance proceeds in respect of a
casualty, other than business interruption/rental income insurance, and any
condemnation awards or insurance proceeds, will be applied either to the repair
or restoration of the Mortgaged Property or to the repayment of the outstanding
principal balance of the Mortgage Loan;
(xix) (A) To the Mortgage Loan Seller's knowledge, there is no material
default, breach, violation or event of acceleration existing under the related
Mortgage or the related Mortgage Note, and no event (other than payments due but
not yet delinquent) which, with the passage of time or with
-5-
notice and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, and (B) the
Mortgage Loan Seller has not waived in writing any material default, breach,
violation or event of acceleration of any of the foregoing, and, pursuant to the
terms of the related Mortgage or the related Mortgage Note, 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;
(xx) No Monthly Payment on such Mortgage Loan has been more than 30 days
delinquent from the later of one year prior to the Cut-off Date, the date of
origination of such Mortgage Loan or, if applicable, the date of acquisition by
the Mortgage Loan Seller of such Mortgage Loan, through the Cut-off Date;
(xxi) Each related Mortgage contains customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the security,
including realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy or other law affecting the right of
creditors generally and the application of principles of equity, and there is no
exemption available to the Mortgagor which would interfere with such right to
foreclose;
(xxii) Except as indicated on Exhibit I-XXII attached hereto, one or more
environmental site assessments were performed by an environmental consulting
firm independent of the Mortgage Loan Seller and the Mortgage Loan Seller's
affiliates with respect to related Mortgaged Property during the 18 month period
preceding the closing of the Mortgage Loan and the Mortgage Loan Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessments referred to herein, has no knowledge of any
material and adverse environmental condition or circumstance affecting such
Mortgaged Property that was not disclosed in such report(s);
xxiii) Each related Mortgage, Mortgage Note 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, as applicable, the related Mortgaged Property, or
any controlling interest therein, is directly or indirectly transferred or sold
or is encumbered in connection with subordinate financing (other than any
existing subordinate debt);
(xxiv) Each Mortgage Loan constitutes a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"). For this purpose, Section 860G(a)(3) of the Code shall be applied
without regard to the rule contained in Treasury Regulations Section
1.860G-2(f)(2) which treats a defective mortgage loan as
-6-
a "qualified mortgage" under certain circumstances. Accordingly, the Mortgage
Loan Seller represents and warrants that each Mortgage Loan is directly secured
by a Mortgage on a commercial property or a multifamily residential property,
and either (1) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property 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;
(xxv) As of the Cut-off Date the Mortgage Loan Schedule is true and correct
in all material respects;
(xxvi) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulations Section 1.860G-1(b)(2);
(xxvii) The Mortgage File contains an appraisal of the related Mortgaged
Property, which appraisal is signed by a qualified appraiser who, to the
Mortgage Loan Seller's knowledge, had no interest, direct or indirect, in the
Mortgaged Property or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan, and the appraisal and appraiser both satisfy the requirements of Title XI
of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the regulations promulgated thereunder, all as in effect on the date the
Mortgage Loan was originated;
-7-
(xxviii) 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 and/or except for immaterial encroachments
off of the Mortgaged Property or where the same is covered by a title insurance
endorsement or affirmative title insurance coverage), and no improvements on
adjoining properties materially encroach upon such Mortgaged Property, or the
requisite title insurance has been obtained with respect to the foregoing;
(xxix) The related Mortgagor has covenanted in the Mortgage Loan documents
to maintain the related Mortgaged Property in compliance with all applicable
laws, zoning (including legal non-conforming uses), ordinances rules, covenants
and restrictions affecting the construction, occupancy, use and operation of
such Mortgaged Property, and the related originator performed the type of due
diligence in connection with the origination of such Mortgage Loan customarily
performed by prudent institutional commercial and multifamily mortgage lenders
with respect to the foregoing matters; the Mortgage Loan Seller has received no
notice of any material violation of any applicable laws, zoning ordinances,
rules, covenants or restrictions affecting the construction, occupancy, use or
operation of such Mortgaged Property;
(xxx) Except as indicated on Exhibit I-XXX(A), With respect to the Mortgage
Loans which as of the Cut-off Date have a principal balance of at least $15
million, the related Mortgagor is an entity which has represented and covenanted
in connection with the origination of the Mortgage Loan, or whose organizational
documents provide, that so long as the Mortgage Loan is outstanding it will be a
single-purpose entity. For this purpose, "single-purpose entity" shall mean a
person, other than an individual, which does not engage in any business
unrelated to the related Mortgaged Property (which may include multiple
Mortgaged Properties owned by the same Borrower and securing only Mortgage Loans
conveyed hereunder as listed on Exhibit I-XXX(B)) and its (or their) financing,
does not have any material assets other than those related to its interest in
such Mortgaged Property (or Mortgaged Properties) or its (or their) financing,
or any indebtedness other than as permitted by the related Mortgage or the other
documents in the Mortgage Loan File, and such Mortgagor has covenanted under the
Mortgage that it will maintain its own books and records separate and apart from
any other person, and holds itself out as being a legal entity, separate and
apart from any other person;
(xxxi) The Mortgage Loan complied, in all material respects, with all of
the terms, conditions and requirements of the Mortgage Loan Seller's applicable
-8-
underwriting standards in effect at the time of the origination or acquisition
of such Mortgage Loan;
(xxxii) The Mortgage Loan Seller has no knowledge nor has it received any
notice that any Mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding;
(xxxiii) To the best of Mortgage Loan Seller's knowledge, as of the Closing
Date, there is no right of rescission, offset, abatement, diminution, defense or
counterclaim to the Mortgage Loan (including the defense of usury), nor will the
operation of any of the terms of the Mortgage Note or the Mortgage, or the
exercise of any rights thereunder, render the Mortgage Note or the Mortgage
unenforceable, in whole or in part (excluding provisions relating to default
interest, yield maintenance charges, prepayment premiums or defeasance
deposits), or subject to any right of rescission, offset, abatement, diminution,
valid defense or counterclaim (including the defense of usury or the violation
of any applicable disclosure or consumer credit laws), except in any such case
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and no such
right of rescission, offset, abatement, diminution, defense or counterclaim has
been asserted with respect thereto;
(xxxiv) In the case of any Mortgage which is a deed of trust, a trustee,
duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the deed of trust or has been
substituted in accordance with applicable law, and no fees or expenses are, or
will become, payable to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor or in connection
with the release of the Mortgaged Property or related security for the Mortgage
Loan following the payment of the Mortgage Loan in full;
(xxxv) The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area designated by the
Federal Emergency Management Agency as Zone A or Zone V or the Mortgagor is
required to maintain or the Mortgagee maintains, flood insurance with respect to
such improvements;
(xxxvi) If the Mortgaged Property is subject to any leases, the Mortgagor
is the owner and holder of the landlord's interest under any leases and the
related Mortgage or Assignment of Leases provides for the appointment of a
receiver for rents (in accordance with applicable law) or allows the Mortgagee
(in accordance with applicable law) to enter into possession to collect rent or
provides for rents to be paid directly to Mortgagee;
-9-
(xxxvii) The Mortgage Note is not secured by any collateral that is not
being transferred hereunder;
(xxxviii) Each Mortgage Loan, if any, that is cross-collateralized is
cross-collateralized only with one or more other Mortgage Loans being
transferred hereunder;
(xxxix) The origination (or acquisition, as the case may be), servicing and
collection practices used with respect to the Mortgage Loan by the Mortgage Loan
Seller and, to the Mortgage Loan Seller's knowledge, by any prior holder of the
Mortgage Loan, have been in all respects legal, proper and prudent in all
material respects and have met customary industry standards;
(xl) No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Mortgage Loan Seller to the Mortgagor
and, except as indicated on Exhibit I-XL attached hereto, to the Mortgage Loan
Seller's 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;
(xli) UCC Financing Statements have been filed and/or recorded in all
places necessary to perfect a valid security interest in all material furniture,
fixtures and equipment owned by a Mortgagor and located on each Mortgaged
Property and for which perfection is accomplished by the filing of a UCC
financing statement, and the mortgages, security agreements, chattel mortgages
or equivalent documents related to and delivered in connection with the related
Mortgage Loans establish and create a valid and enforceable first lien and first
priority security interest on such material furniture, fixtures and equipment
except as enforceability may be limited by bankruptcy or other laws affecting
creditor's rights generally or by the application of the rules of equity;
(xlii) Except as indicated on Exhibit I-XLII attached hereto as being
subject to subordinate debt secured by a subordinate mortgage encumbering the
related Mortgaged Property (the "Subordinate Debt Mortgage Loans"), as of the
date of the Prospectus, to the Mortgage Loan Seller's knowledge, the Mortgagor
has no indebtedness for borrowed money secured by a mortgage encumbering the
Mortgaged Property other than the Mortgage Loan. Except as indicated in Exhibit
I-XLII, with respect to the Subordinate Debt Mortgage Loans, the creditor (the
"Subordinate Lender") under such secured indebtedness for borrowed money ("Other
Debt") of the Mortgagor has entered into a subordination agreement with the
Mortgage Loan Seller (or the Mortgage Loan originator) pursuant to which (A) the
Subordinate Lender has agreed to fully subordinate the Other Debt to the
Mortgage Loan (collectively, the "Senior Debt"), (B) the Subordinate Lender has
agreed not to declare a default or
-10-
exercise any remedies with respect to the Other Debt until the Senior Debt has
been paid in full, and (C) such subordination agreement is assignable to the
Company and its successors and assigns and is being assigned hereunder and is
part of the Mortgage File;
(xliii) Based on information obtained from the related Mortgagor at the
time of origination, a list of borrowers or groups of affiliated borrowers with
multiple Mortgage Loans is attached hereto as Exhibit I-XLIII and, as of the
Cut-off Date, the aggregate principal amount of any Mortgage Loan or group of
Mortgage Loans made to one borrower or group of affiliated borrowers does not
exceed the amount set forth in Exhibit I-XLIII attached hereto;
(xliv) The Mortgage Loan has an interest rate of at least 6.91% per annum;
(xlv) The Mortgage Loan is non-recourse to the related Mortgagor (or its
principals) except for certain circumstances including fraud, misappropriation,
material misrepresentation and other matters expressly set forth in the related
Mortgage Loan documents;
(xlvi) The Mortgage Loan Seller (or Mortgage Loan originator) has inspected
or caused to be inspected each related Mortgage Property within twelve months of
origination;
(xlvii) Except as set forth in Schedule II, the Mortgage Loan is not
secured in whole or in part by a ground lease; and
(xlviii) To the Seller's actual knowledge, there are no pending actions,
suits or proceedings by or before any court or governmental authority against or
affecting the related Mortgagor or Mortgaged Property that, if determined
adversely to such Mortgagor, would materially and adversely affect the ability
of the Mortgagor to pay principal, interest or any other amount due under such
Mortgage Loan.
-11-
SCHEDULE II
For each Mortgage Loan identified on the Mortgage Loan Schedule as a ground
lease, the Mortgage Loan Seller hereby represents and warrants:
(A)(i) the Mortgage Loan is also secured by the related fee interest or
(ii) the ground lease represents a non-essential portion of the Mortgaged
Property, and the ground lease has an original term (or an original term plus
one or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Mortgagor, or the Mortgagee if the
Mortgagee acquires the related Mortgaged Property upon foreclosure,
assignment-in-lieu of foreclosure or otherwise) that extends not less than 10
years beyond the stated maturity of the related Mortgage Loan, or
(B) if the Mortgage Loan is secured by a Mortgage constituting a valid
first lien on an unencumbered interest of the Borrower as lessee under a ground
lease underlying the related Mortgaged Property, then the Mortgage Loan Seller
represents and warrants the following:
(i) The ground lease (which shall mean such ground lease, all amendments
and modifications thereof and any related estoppels or agreements from ground
lessor) or a memorandum regarding it has been duly recorded. The ground lease
permits the interest of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by such lessee, its
successors or assigns in a manner that would adversely affect the security
provided by the related Mortgage. There has been no material change in the terms
of such ground lease since its recordation, except by written instruments, all
of which are included in the related Mortgage File;
(ii) The lessor under such ground lease has agreed in a writing included in
the related Mortgage File that the ground lease may not be amended, modified,
canceled or terminated without the prior written consent of the Mortgagee and
that any such action without such consent is not binding on the Mortgagee, its
successors or assigns, except if an event of default occurs under the Ground
Lease and notice is provided to the Mortgagee and such default is curable by the
Mortgagee, but remains uncured beyond the applicable cure period;
(iii) The ground lease has an original term (or an original term plus one
or more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Mortgagee) that extends not less than
10 years beyond the stated maturity of the related Mortgage Loan;
(iv) The ground lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the
Mortgage (including without limitation, the rights of any fee-mortgage, if any)
other than the related ground lessor's related fee interest and any exceptions
set forth in the related title insurance policy or opinion of title;
(v) The ground lease is assignable to the Mortgagee 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);
(vi) As of the date of origination of the Mortgage Loan, and to the
Mortgage Loan Seller's knowledge as of the Cut-off Date, the ground lease is in
full force and effect and no default has occurred, nor is there any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of the ground lease;
(vii) 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 either
no notice given is effective or no termination of the lease in connection
therewith will be effective against the Mortgagee unless written notice of such
default or a copy thereof has been given to the Mortgagee in a manner described
in the ground lease or ancillary agreement;
(viii) The Mortgagee is permitted a reasonable opportunity, which may be
concurrent and coterminous with the Mortgagor's rights thereunder (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take other action
so long as the Mortgagee is proceeding) to cure any default under the ground
lease which is curable after the receipt of notice of any default before the
lessor may terminate the ground lease;
(ix) The ground lease does not impose any restrictions on subletting by the
Mortgagee that would be viewed as commercially unreasonable by a prudent
commercial mortgage lender;
(x) The ground lease provides that 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, in the case of condemnation, assigned to the mortgagee, or in
the case of casualty to Tenants, to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except in
cases where a different allocation would not be viewed as commercially
unreasonable by any institutional investor, taking
-2-
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);
(xi) Until the principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease will have the option to
terminate or modify the ground lease without prior written consent of the
Mortgagee as a result of any casualty or partial condemnation, except to provide
for an abatement of the rent;
(xii) Upon request, the ground lessor is required to enter into a new lease
upon termination of the Ground Lease for any reason, on substantially similar
terms and conditions as the old lease, including upon the rejection of the lease
in bankruptcy; and
(xiii) Except as set forth on Exhibit II-XIII attached hereto, the ground
lease does not provide for an increase in rental payments.
-3-
SCHEDULE III
With respect to any Mortgage Loan that is secured in whole or in part by a
Mortgaged Property which is operated as a residential health care facility (a
"Facility"), if any:
(i) Except as indicated on Exhibit III-I, attached hereto, all governmental
licenses, permits, regulatory agreements or other approvals or agreements
necessary or desirable for the use and operation of each Facility as intended
are held by the related Mortgagor or the operator of the Facility, and are in
full force and effect, including, without limitation, a valid Certificate of
Need ("CON") or similar certificate, license, or approval issued by the
applicable department of health for the requisite number of beds, and approved
provider status in any approved provider payment program (collectively, the
"Licenses");
(ii) The Licenses (a) may not be, and have not been, transferred to any
location other than the Facility; (b) have not been pledged as collateral
security for any other loan or indebtedness; and (c) are held free from
restrictions or known conflicts which would materially impair the use or
operation of the Facility as intended, and are not provisional, probationary or
restricted in any way.
(iii) As of the Cut-off Date and to Mortgage Loan Seller's knowledge,
without inquiry, as of the Cut-off Date, the Facility has not received a "Level
A" (or equivalent) violation which has not been cured to the satisfaction of the
applicable governmental agency, and no statement of charges or deficiencies has
been made or penalty enforcement action has been undertaken against the
Facility, its operator or the Mortgagor or against any officer, director or
stockholder of such operator or the Mortgagor by any governmental agency during
the last three calendar years, and there have been no violations over the past
three years which have threatened the Facility's, the operator's or the
Mortgagor's certification for participation in Medicare or Medicaid or the other
third-party payors' programs.
C-1
EXHIBIT I-XI (A)
None.
EXHIBIT I-XII
None.
EXHIBIT I-XVI
None.
EXHIBIT I-XVII
None.
EXHIBIT I-XXII
None.
EXHIBIT I-XXXX
None.
EXHIBIT I-XL
None.
EXHIBIT I-XLII
None.
EXHIBIT III - (i)
Control Number 544 Laurelwood. The State of Connecticut has licensed 120 beds
which is the current amount of beds available. Borrower has agreed to increase
the license to 126 beds or deposit cash collateral with the Lender.
DREFC AFFL
EXHIBIT I-XLIII
BORROWERS OR GROUPS OF AFFILIATED BORROWERS WITH MULTIPLE MORTGAGE LOANS
CONTROL LOAN MORTGAGE CUT-OFF
NUMBER NUMBER LOAN SELLER PROPERTY NAME LOAN AMOUNT
----------------------------------------------------------------------------------------------------------------
325 1027 Daiwa Real Estate Finance Corp. Hampton Inn and Suites 15,946,751
326 1028 Daiwa Real Estate Finance Corp. Hampton Inn 6,727,536
327 1029 Daiwa Real Estate Finance Corp. Days Inn Hotel 2,541,513
----------
Total 25,215,800
479 217691 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 0 Xxxx 00xx Xxxxxx 463,175
480 217692 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 00 Xxxx 00xx Xxxxxx 211,623
481 217693 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 00 Xxxx 00xx Xxxxxx 224,600
482 217694 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 000 Xxxx 00xx Xxxxxx 328,415
483 217695 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 000 Xxxxx 000xx Xxxxxx 179,680
484 217696 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 000 Xxxx 00xx Xxxxxx 339,395
485 217697 Daiwa Real Estate Finance Corp. 244-248 West 21 Street 728,702
488 217698 Daiwa Real Estate Finance Corp. Xxxx Xxxx Portfolio - 000 Xxxx 000xx Xxxxxx 386,312
----------
Total 2,861,901
CONTROL
NUMBER LIST CNTRL# OF AFFILIATED LOANS AFFILIATES
------------------------------------------------------------------
325 Cntrl #'s 326, 327 Xxxxx
326 Cntrl #'s 325, 327 Xxxxx
327 Cntrl #'s 326, 327 Xxxxx
Total
479 Cntrl #'s 480, 481, 482, 483, 484, 485, 488 Xxxx Xxxx
480 Cntrl #'s 479, 481, 482, 483, 484, 485, 488 Xxxx Xxxx
481 Cntrl #'s 479, 480, 482, 483, 484, 485, 488 Xxxx Xxxx
482 Cntrl #'s 479, 480, 481, 483, 484, 485, 488 Xxxx Xxxx
483 Cntrl #'s 479, 480, 481, 482, 484, 485, 488 Xxxx Xxxx
484 Cntrl #'s 479, 480, 481, 482, 483, 485, 488 Xxxx Xxxx
485 Cntrl #'s 479, 480, 481, 482, 483, 484, 488 Xxxx Xxxx
488 Cntrl #'s 479, 480, 481, 482, 483, 484, 485 Xxxx Xxxx
Total
Page 1
DREFC Def Loans
EXHIBIT I-VI
DEFEASANCE LOANS
CONTROL LOAN MORTGAGE CUT-OFF
NUMBER NUMBER LOAN SELLER PROPERTY NAME LOAN AMOUNT
---------------------------------------------------------------------------------------------------------------
314 1016 Daiwa Real Estate Finance Corp. Lido Plaza Shopping Center 6,983,195
324 1026 Daiwa Real Estate Finance Corp. The Wealshire 15,933,739
329 1031 Daiwa Real Estate Finance Corp. Fortunoff 5,902,464
339 1040 Daiwa Real Estate Finance Corp. South Plaza Shopping Center 12,478,702
544 9927 Daiwa Real Estate Finance Corp. Laurelwood Rehab and Skilled Nursing Center 13,000,000
Page 1
fortunoff
EXHIBIT II-XIII
SCHEDULE OF GROUND LEASE PAYMENT INCREASES
MONTHLY
CONTROL # PROPERTY NAME MORTGAGE LOAN SELLER GROUND RENT BEGINNING ENDING
---------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx Xxxxx Xxxx Xxxxxx Finance Corp. 6,464.79 7/28/97 7/27/02
7,388.33 7/28/02 7/27/07
8,311.88 7/28/07 thru lease term
Page 1
