MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of November 1, 1995 (the
"Agreement"), between First Union National Bank of North Carolina (the "Seller")
and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase certain
multifamily and commercial mortgage loans (the "Mortgage Loans") as provided
herein. The Purchaser intends to deposit them, together with the MLMC Mortgage
Loans (as defined below), 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 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, 1995 (the "Cut-off Date"), among
the Purchaser as depositor, Bankers Trust Company as master servicer (in such
capacity, the "Master Servicer"), Bankers Trust Company as special servicer (in
such capacity, the "Special Servicer") and Union Bank as trustee (the
"Trustee"). Concurrently with the purchase of Mortgage Loans pursuant to this
Agreement, the Purchaser will also purchase multifamily and commercial mortgage
loans pursuant to a Mortgage Loan Purchase Agreement, dated as of November 1,
1995, between Xxxxxxx Xxxxx Mortgage Capital Inc. ("MLMC") and the Purchaser
(the "MLMC Agreement"). Such mortgage loans (the "First Union Mortgage Loans")
will likewise be deposited into the Trust Fund. Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A, excluding the Prepayment Premiums or Yield Maintenance
Charges paid or payable on Mortgage Loans Nos. 96, 97, 100, 103, 112 and 130 and
the Master Servicer Strip on Mortgage Loan Nos. 96, 99, 100, 106, 109, 112, 131,
167, 181 and 182, which have been retained by the entity from which the Seller
acquired such Mortgage Loans, shall not be part of REMIC I or REMIC II and shall
be distributed pursuant to Section 3.05(a)(xv) of the Pooling and Servicing
Agreement. The Mortgage Loan Schedule may
be amended to reflect the actual Mortgage Loans accepted by the Purchaser
pursuant to the terms hereof. (The Loans identified on the Mortgage Loan
Schedule shall hereinafter be referred to as the "First Union Mortgage Loans.")
The First Union Mortgage Loans will have an aggregate principal balance of
$371,063,705 (the "First Union Balance") as of the close of business on the
Cut-off Date, after giving effect to any payments due before such date whether
or not received. The First Union Balance and the MLMC Balance (as defined in the
MLMC Agreement) together equal an aggregate principal balance (the "Initial Pool
Balance") of $643,601,863. The purchase and sale of the First Union Mortgage
Loans shall take place on November 30, 1995 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). The
consideration for the First Union Mortgage Loans shall consist of (A) a cash
amount equal to 100% of the aggregate principal balance of the First Union
Mortgage Loans, plus (B) interest accrued on each First Union Mortgage Loan at
the related Net Mortgage Rate, for the period from and including the Cut-off
Date up to but not including the Closing Date, which cash amount shall be paid
to the Seller or its designee by wire transfer in immediately available funds on
the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the First Union Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the First
Union Mortgage Loans identified on the Mortgage Loan Schedule as of such date.
The Mortgage Loan Schedule, as it may be amended, shall conform to the
requirements set forth in this Agreement and the Pooling and Servicing
Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the First Union Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of principal
and interest due on or before the Cut-off Date but collected after the Cut-off
Date, and recoveries of principal and interest collected on or before the
Cut-off Date (only in respect of principal and interest on the First Union
Mortgage Loans due on or before the Cut-off Date), shall belong to, and be
promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has, on behalf of the
Purchaser, delivered to the Trustee, the documents and instruments specified
below with respect to each
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First Union 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, except as otherwise disclosed on Exhibit
B hereto, contain the following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of Union Bank,
as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1995-C3;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (with
recording information indicated thereon), if such item is a document
separate from the Mortgage;
(iv) an original executed assignment of the Mortgage, any related
Assignment of Leases (if such item is a document separate from the
Mortgage), and any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of Union Bank, as trustee
for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1995-C3, in recordable form;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan in favor of Union Bank, as trustee for the registered holders
of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1995-C3;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provision of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's
title insurance issued on the date of the origination of such Mortgage
Loan, or, if such policy has not been issued, an irrevocable, binding
commitment to issue such title insurance policy; and
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(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC-2 or
UCC-3, as appropriate, in favor of Union Bank, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1995-C3.
(d) Within 30 days following the Closing Date, the Purchaser shall submit
or cause to be submitted for recordation or filing, as the case may be, in the
appropriate public office for real property records or Uniform Commercial Code
financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clauses (iv) and (v) of
subsection (c) above and each UCC-2 and UCC-3 in favor of and delivered to the
Trustee constituting part of the Mortgage File. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Purchaser or its designee.
(e) All documents necessary to the servicing of the First Union Mortgage
Loans and in the Seller's possession (the "Additional Mortgage Loan Documents")
that are not required to be delivered to the Trustee shall be delivered or
caused to be delivered by the Seller to the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a National Banking Association validly existing
under the laws of the United States of America and is duly authorized and
qualified to transact any and all business contemplated by this Agreement
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
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the Purchaser, constitutes a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights in general, as they may be applied in the context of the
insolvency of a National Banking Association, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), 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 Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's Articles of Association or By-Laws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or any of its assets.
(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.
(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 and no bulk sale law applies to such transactions.
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(vii) No litigation is pending or, to the best of 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
adversely affect the performance by the Seller of its obligations under
this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
First Union Mortgage Loans of the Seller to the Purchaser as a sale of the
First Union Mortgage Loans to the Purchaser in exchange for consideration
consisting of an amount equal to the Seller's pro rata portion of the
proceeds of the sale of the Certificates by the Purchaser to the
Underwriters (the Seller's pro rata portion to be determined according to
the percentage that the First Union Balance represents of the Initial Pool
Balance) pursuant to the Underwriting Agreement, dated as of November 28,
1995 (the "Underwriting Agreement") and the Certificate Purchase Agreement,
dated as of November 28, 1995 (the "Certificate Purchase Agreement"). The
consideration received by the Seller upon the sale of the First Union
Mortgage Loans to the Purchaser will constitute reasonably equivalent value
and fair consideration for the First Union Mortgage Loans. The Seller will
be solvent at all relevant times prior to, and will not be rendered
insolvent by, the sale of the First Union Mortgage Loans to the Purchaser.
The Seller is not selling the First Union Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(ix) Immediately prior to the sale of the First Union Mortgage Loans
to the Purchaser as herein contemplated, the Seller will have good title
thereto and be the sole owner thereof, and such sale will transfer the
First Union Mortgage Loans to the Purchaser free and clear of any pledge,
lien, encumbrance or security interest.
(b) The Seller hereby represents and warrants for the benefit of the
Purchaser and the Trustee as of the Closing Date, with respect to each First
Union Mortgage Loan, that:
(i) The Seller has good and marketable title to, and is the sole owner
and holder of, the Mortgage Loan.
(ii) The Seller has full right and authority to sell, assign and
transfer the Mortgage Loan.
(iii) The information pertaining to the Mortgage Loan set forth in the
Mortgage Loan Schedule is true and correct in all material respects as of
the Cut-off Date.
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(iv) The Mortgagor, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of the
origination date.
(v) The origination, servicing and collection practices used by the
Seller or any prior holder of the Note have been in all respects legal,
proper and prudent and have met customary industry standards.
(vi) The Seller is transferring the Mortgage Loan to the Purchaser
free and clear of any liens, pledges, charges and security interests.
(vii) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
(viii) The Mortgage Loan complied with all applicable usury and
disclosure laws as of the origination date.
(ix) Each of the related Mortgage Note, related Mortgage and other
agreements executed in connection therewith is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law), and there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to
such Mortgage Note, Mortgage or other agreements.
(x) The Mortgage File contains an Assignment of Leases, which creates,
in favor of the holder, a valid perfected and enforceable lien of the same
priority as the related Mortgage, in the property and rights described;
provided that the enforceability of such lien is 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.
(xi) Since the origination of the Mortgage Loan the terms of the
related Mortgage Note, Mortgage and Security Agreements have not been
impaired, waived, modified, altered, satisfied, canceled or subordinated by
the Seller, the originator or the servicer thereof in any
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respect, except, in each of the foregoing instances, by written instruments
that are a part of the related Mortgage File, recorded in the applicable
public recording office if necessary to maintain the priority of the lien
of the related Mortgage and Security Agreements, delivered to the
Purchaser.
(xii) The Mortgage Loan complies with the Seller's underwriting
policies in effect as of such Mortgage Loan's origination date (as
applicable).
(xiii) The Note is not secured by any collateral 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.
(xiv) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such Mortgage.
(xv) The Mortgage Loan is not a participation interest in a mortgage
loan, but is a whole loan, and the Seller does not own and is not entitled
to own any equity interest in the Mortgagor.
(xvi) The Mortgage Loan does not contain any terms providing for a
contingent interest.
(xvii) The related Mortgage is a valid and enforceable first mortgage
lien on the related Mortgaged Property. Such lien has priority over all
other liens or encumbrances (including mechanics or materialmen's liens)
except for (A) the lien for current real estate taxes and assessments not
yet due and payable and (B) covenants, conditions and restrictions, rights
of way, easements and other matters that are of public record and/or are
referred to in the related lender's title insurance policy, none of which
materially interferes with the security intended to be provided by such
Mortgage.
(xviii) The Note and Mortgage do not require the Mortgagee thereof to
release any portion of the Mortgaged Property from the lien of the Mortgage
except upon payment in full of the Mortgage Loan.
(xix) Prior to the Cut-off Date, any delinquent taxes that had become
due and owing in respect of, and affecting, the related Mortgaged Property
were paid, or an escrow of funds in an amount sufficient to cover such
payments has been established.
(xx) All escrow deposits and payments relating to the Mortgage Loan
are under the control of the Seller or
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Servicer of such Mortgage Loan and all amounts required to be deposited by
the Mortgagor have been deposited.
(xxi) (A) Except for certain delinquent payments, none of which was
more than thirty (30) days past the date when first due, there was no
material default, breach, violation or event of acceleration existing under
the related Mortgage or the related Mortgage Note, and to the Best
Knowledge of Seller, 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, breach, violation or event of acceleration occurred
during the preceding twelve months; and (B) the Seller has not waived 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.
(xxii) As of the date of origination, the Mortgage Loan has a debt
service coverage ratio of at least 1.15 and a loan-to-value ratio of not
more than 85.00%, as calculated as described in the Prospectus Supplement.
(xxiii) There is no proceeding known to the Seller to be pending for
the total or partial condemnation of the related Mortgaged Property, and
the Mortgaged Property is free and clear of any damage that would
materially and adversely affect its value as security for the Mortgage
Loan.
(xxiv) Each improvement located on or forming part of the related
Mortgaged Property complies with applicable zoning ordinances, or
constitutes a legal non-conforming use or structure or, if such an
improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the Mortgaged Property.
(xxv) None of the improvements included for the purpose of determining
the appraised value of the Mortgage Property at the time of the origination
of the Mortgage Loan lies outside of the boundaries and building
restriction lines of the Mortgaged Property and no improvements on
adjoining properties materially encroach upon the Mortgage Property.
(xxvi) The related Mortgaged Property is covered by a lender's title
insurance policy insuring that the related Mortgage is a valid first
mortgage lien on such Mortgaged Property, subject only to the exceptions
stated therein, which do not and will not materially and adversely
interfere with (1) the ability of the Mortgagor timely to
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pay in full the principal and interest on the Mortgage Note, or (2) the use
of the Mortgaged Property for the use currently being made thereof, or (3)
the value of the Mortgaged Property; and such title insurance policy is in
full force and effect, and no claims have been made thereunder.
(xxvii) The related Mortgaged Property is insured by a fire and
extended perils insurance policy that provides coverage in an amount not
less than the principal balance of the Mortgage Loan.
(xxviii) The Mortgaged Property is insured by business interruption or
rent insurance, in an amount at least equal to 12 months of operations of
the Mortgaged Property and comprehensive general liability insurance in an
amount not less than $1 million per occurrence.
(xxix) The Mortgaged Property is not located in a flood hazard area as
defined by the Federal Insurance Administration or is covered by flood
hazard insurance.
(xxx) The Mortgage Loan represents a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. The Seller represents and
warrants that, either as of the date of origination or the Closing Date,
the fair market value of the property securing the Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan.
(xxxi) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury regulation Section
1.860G-1(b)(2).
(xxxii) A Phase I Environmental Assessment was performed by or on
behalf of the Seller with respect to the related Mortgaged Property. Such
Phase I Environmental Assessment was performed within six (6) months (or 12
months with respect to nine (9) of the Mortgaged Properties) prior to their
respective dates of origination. A report of such Phase I Environmental
Assessment has been delivered to the Purchaser, and the Seller, having made
no independent inquiry other than reviewing such report, has no knowledge
of any material and adverse environmental condition or circumstance
affecting the related Mortgaged Property that was not disclosed in such
report.
(xxxiii) The Mortgage Loan contains a representation made by the
Mortgagor in substance that it has not and will not use, cause or permit to
exist on the related mortgaged property any hazardous materials in any
manner that violates federal, state or local laws, ordinances, regulations
or orders. The mortgagor will
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defend and hold the purchaser and its successors and/or assigns harmless
from and against any and all losses, liabilities, damages, injuries,
penalties, fines, expenses, and claims of any kind whatsoever (including
attorney's fees and costs) paid, incurred, or suffered by, or asserted
against, any such party resulting from a breach of any representation,
warranty or covenant given by the mortgagor under the mortgage. To the best
of the seller's knowledge, the mortgaged property is in material compliance
with all applicable federal, state and local laws pertaining to
environmental hazards, and no notice of violation of such laws have been
issued by any governmental agency or authority.
(xxxiv) To the best of the knowledge of the Seller, the Mortgagor is
not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xxxv) No advance of funds has been made directly or indirectly, by
the Seller to the Mortgagor and no funds have been received from any person
other than the Mortgagor for or on account of payments due on the Note.
(xxxvi) The related Mortgage prohibits any further pledge or lien on
the Mortgaged Property, whether equal or subordinate to the lien of the
Mortgage, without the prior written consent of the holder.
(xxxvii) If the related Mortgage Property is a retail or multifamily
property, based on Mortgagor representations, tenant estoppel certificates
and other documents obtained by the Seller, (i) the information contained
in the related schedule of leases or most recent rent roll, as the case may
be, is true and correct in all material respects, (ii) all leases set forth
therein are in full force and effect, and (iii) no default by the Mortgagor
or the lessees has occurred under such leases, nor, to the best of the
Seller's knowledge, is there any existing condition which, but for the
passage of time or the giving of notice, or both, would result in a default
under the terms of such lease.
(xxxviii) Any related assignment of leases creates a valid
first-priority assignment of or security interest in the right to receive
all payments due under the related lease, and no other person owns any
interest therein superior to or of equal priority with the interest created
under such assignment.
(xxxix) If the principal balance of the related Mortgage Loan is
greater than $2.5 million, the mortgagor is a person, other than an
individual, which is formed or organized solely for the purpose of owning
and operating the Mortgaged Property, does not engage in any business
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unrelated to such property and its financing, does not have any assets
other than those related to its interest in the property or its financing,
or any indebtedness other than as permitted by the related Mortgage and the
other Mortgage Loan documents, has its own books and records and accounts
separate and apart from any other person, and holds itself out as being a
legal entity, separate and apart from any other person.
(xl) With respect to any Mortgage Loan that is secured in whole or in
part by the interest of a Mortgagor as a lessee under a Ground Lease but
not by the related Fee Interest:
(A) Such Ground Lease or a memorandum thereof has been or will be
duly recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage;
(B) The Mortgagor's interest in such Ground Lease is assignable
to the Trustee without the consent of the lessor thereunder (or, if
any such consent is required, it has been obtained prior to the
Closing Date) and, in the event that it is so assigned, is further
assignable by the Trustee and its successors without a need to obtain
the consent of such lessor;
(C) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Ground Lessee and
that any such action without such consent is not binding on the Ground
Lessee, its successors or assigns.
(D) Unless otherwise disclosed to the Purchaser, the Ground Lease
does not permit any increase in the amount of rent payable by the
Ground Lessee thereunder during the term of the mortgage loan.
(E) To the best of the Seller's knowledge, at the Closing Date,
such Ground Lease is in full force and effect and no default has
occurred under such Ground Lease;
(F) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the mortgagee from
the lessor, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner described in such Ground
Lease or estoppel or consent letter;
(G) Except as indicated in the related title insurance policy or
opinion of title, the ground lessee's
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interest in the Ground Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the related
mortgage, other than the related ground lessor's related fee interest.
(H) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease before the lessor thereunder may terminate such Ground
Lease; and
(I) Such Ground Lease has an original term (including any
extension options set forth therein) that extends not less than 10
years beyond the Maturity Date of the related Mortgage Loan.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds other than in
respect to 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 lessee's mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence
of an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee, or in any manner, which
would adversely affect the security provided by the related Mortgage.
(i) With respect to any Mortgage Loan that is secured in whole or in
part by a Mortgage Property which is operated as a residential health care
facility (a "Facility");
(A) 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 Mortgagor or
the operator of the Facility, which is affiliated with the Mortgagor,
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").
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(B) The Licenses, including without limitation, (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.
(C) As of the date of origination of the Mortgage Loan, the
Facility has not received a "Level A" (or equivalent) violation, 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, if such Facility relied on any such programs for a
substantial portion of its revenues at the time of origination of the
Mortgage Loan.
(d) If the Seller receives from the Master Servicer notice of a
Document Defect or a Breach (the "Defect/Breach Notice"), then the Seller
shall within 90 days after its receipt of the Defect/Breach Notice (i) cure
such Document Defect or Breach, as the case may be, in all material
respects, or (ii) repurchase the affected First Union Mortgage Loan (or the
related mortgaged property) from the Trustee at a price equal to the
Purchase Price; provided, however, that if such Document Defect or Breach
is capable of being cured but not within such 90-day period and the Seller
has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the Seller shall have an
additional 90 days to complete such cure; and provided, further, that with
respect to such additional 90-day period the Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day
period and what actions the Seller is pursuing in connection with the cure
thereof and stating that the Seller anticipates that such breach will be
cured within the additional 90-day period. Notwithstanding the foregoing,
the delivery of a 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.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this
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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 Delaware. The Purchaser
has the full corporate power and authority and legal right to acquire the
First Union Mortgage Loans from the Seller and to transfer the First Union
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 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 First Union Mortgage Loans by the
Purchaser, the transfer of the First Union Mortgage Loans to the Trustee,
and the execution, delivery or performance of this Agreement and by the
Purchaser, conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (A) any term
or provision of the Purchaser's Articles of Incorporation or Bylaws, (B)
any term or provision of any material agreement, contract, instrument or
indenture, to which the Purchaser is a party or by which the Purchaser is
bound, or (C) any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over
the Purchaser or its assets.
(e) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Purchaser will report the transfer of the
First Union Mortgage Loans by the Seller to the Purchaser as a sale of the
First Union Mortgage Loans to the Purchaser in exchange for consideration
consisting of an amount equal to the Seller's pro rata portion of the
proceeds of the sale of the Certificates by the Purchaser to the
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Underwriters (the Seller's pro rata portion to be determined according to the
percentage that the First Union Balance represents of the Initial Pool Balance)
pursuant to the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, One
Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M.,
New York time, 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 Sections 3(a), 3(b) and 3(c) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, 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 Custodian 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
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; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
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
First Union 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;
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(b) A Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser and
the Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as if
made on such date; and (ii) the Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its
part that are required under this Agreement to be performed or satisfied at
or prior to the date hereof;
(c) An Officer's Certificate from an officer of the Seller, in his or
her individual capacity, 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, in his or
her individual capacity, dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that (i) such
officer has carefully examined the Prospectus (as defined in the
Underwriting Agreement) and nothing has come to his attention that would
lead him to believe that the Prospectus, as of the date of the Prospectus
Supplement (as defined in the Underwriting Agreement) or as of the Closing
Date, included or includes any untrue statement of a material fact or
omitted or omits to state therein a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, and (ii) such officer has examined the
Memorandum (as defined in the Certificate Purchase Agreement) and nothing
has come to his attention that would lead him to believe that the
Memorandum, as of the date thereof or as of the Closing Date, included or
includes any untrue statement of a material fact or omitted or omits to
state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(e) The resolutions of the board of directors of the Seller and any
requisite shareholder consent authorizing the Seller's entering into the
transactions contemplated by this Agreement, the certificate of
incorporation and by-laws of the Seller, and a certificate of good standing
of the Seller issued by the Secretary of State of the State of Delaware not
earlier than sixty (60) days prior to the Closing Date;
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(f) A written opinion of Xxxx X. Xxxxxx, III, counsel for the Seller,
in form and substance acceptable to the Purchaser and its counsel, with any
modifications required by the rating agencies identified in the Prospectus
Supplement (the "Rating Agencies"), dated the Closing Date and addressed to
the Purchaser, the Underwriters and each of the Rating Agencies, together
with such other written opinions as may be required by the Rating Agencies;
and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
SECTION 7. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
the Underwriters, their respective officers and directors, and each person,
if any, who controls the Purchaser or the Underwriters within the meaning
of either Section 15 of the Securities Act of 1933 (the "1933 Act") or
Section 20 of the Securities Exchange Act of 1934 (the "1934 Act"), against
any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, the 1934
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based in whole or in part
upon any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus, in any amendment thereof or supplement
thereto, the Private Placement Memorandum, Computational Materials or ABS
Term Sheets distributed by either Underwriter or arise out of or are based
upon any 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 in which they were made, not misleading,
which untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon any information furnished to the
Purchaser by the Seller or approved by the Seller, or upon any document
delivered to the Purchaser by the Seller, or upon any of the
representations, warranties, covenants or agreements of the Seller as set
forth in this Agreement (collectively, the "Seller's Information"), it
being acknowledged that the statements set forth in the Prospectus
Supplement under the caption "Description of the Mortgage Pool" or
elsewhere in the Prospectus Supplement with respect to the subjects
discussed under such caption and statements in the Private Placement
Memorandum, Computational Materials and ABS Term Sheet, to the extent
relating to or based (in whole or in part) on information relating to the
First Union Mortgage Loans or the Seller, are to be the only statements
made in reliance upon information furnished or approved by the Seller, or
upon documents delivered to the Purchaser by the Seller, or upon any of the
representations, warranties, covenants or agreements of the Seller as set
forth in this Agreement. The Seller further agrees to indemnify and hold
harmless the Purchaser, the
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Underwriters, their respective officers and directors, and each person, if
any, who controls the Purchaser or the Underwriters within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity with reference to the inclusion of
information substantially identical to that included in the Prospectus
Supplement with respect to the Seller's Information in the Memorandum or
any amendment thereof or supplement thereto. This indemnity agreement will
be in addition to any liability which the Seller may otherwise have.
(b) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof
is to be made against the Seller (the "indemnifying party") under this
Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified party
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 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 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 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, representing
all the indemnified parties under Section 7(a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
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
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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).
(c) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities, in such proportion as is appropriate to reflect the relative
fault of the indemnified and indemnifying parties in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnified and indemnifying parties shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) 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(c) 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.
(e) The indemnity and contribution agreements contained in this
Section 8 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Purchaser, the Underwriters, any of their respective directors or officers,
or any person controlling the Purchaser or the Underwriters, and (iii)
acceptance of and payment for any of the Certificates.
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(f) The Underwriters shall be third-party beneficiaries of the
provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser to
the extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the First Union Balance represents
the Initial Pool Balance): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus and Memorandum
relating to the Certificates; (ii) the initial fees, costs, and expenses of the
Trustee (including reasonable attorneys' fees); (iii) the filing fee charged by
the Securities and Exchange Commission for registration of the Certificates so
registered; (iv) the fees charged by the Rating Agencies to rate the
Certificates so rated; (v) the expense of recording any assignment of Mortgage
or assignment of Assignment of Leases as contemplated by Section 2 hereof; and
(vi) the cost of obtaining a "comfort letter" from a firm of certified public
accountants selected by the Purchaser with respect to numerical information in
respect of the First Union Mortgage Loans and the Seller included in the
Prospectus and Memorandum. 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 First Union Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the First Union Mortgage Loans by the Seller to the Purchaser and not
as a pledge of the First Union 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 First Union 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 First Union Mortgage
Loans by the Seller to the Purchaser to secure a debt or other obligation of the
Seller, and (b) (i) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code; (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 First Union Mortgage
Loans, and all amounts payable to the holder of the First Union 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;
-21-
(iii) the assignment to the Trustee of the interest of the Purchaser as
contemplated by Section 1 hereof shall be deemed to be an assignment of any
security interest created hereunder; (iv) the possession by the Trustee or any
of its agents, including, without limitation, the Custodian, of the Mortgage
Notes, and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York Uniform Commercial Code; and (v) notifications to
persons (other than the Trustee) holding such property, and acknowledgments,
receipts or confirmations from persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the 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 First Union Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of this
Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands and
other communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the First Union Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular
-22-
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers as of the date
first above written.
SELLER
FIRST UNION NATIONAL BANK OF NORTH CAROLINA.
/s/ XXXXXXXX XXXXX
By:_________________________________________
Name: Xxxxxxxx Xxxxx
Title: Senior Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE
INVESTORS, INC.
/s/ XXXXX XXXXXXXX
By:_________________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address for Notices:
World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
-24-
EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
172 1131-1137 Commonwealth 1131-1137 Commonwealth Xxxxxxxx XX 00000 1,275,954.46
------------------------------------------------------------------------------------------------------------------------------------
101 1144-1160 Commonwealth 1144-1160 Commonwealth Xxxxxxxx XX 00000 5,331,097.24
121 000-000 Xxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 3,500,900.06
160 000-000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 1,595,707.78
110 000-000 Xxxxxxxxxx Xxxx 000-000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 4,612,376.02
179 000-000 Xxxxxxx Xxxx Xxx. 000-000 Xxxxxxx Xxxx Xxx. Xxxxxxx XX 00000 997,317.36
------------------------------------------------------------------------------------------------------------------------------------
88 00 Xxxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx Xxxxxx XX 00000 7,835,157.88
86 0000 Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxxxxx Xxxxx Xxxxxxx Xx 00000 8,368,208.23
180 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx Xxxxx XX 00000 958,468.54
000 Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 2,917,000.00
000 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 3,252,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx XX Xxxxx 00 & Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 4,063,965.60
169 Xxxxx Saddlery 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 1,436,000.00
115 Aspentree 00000 Xxxxxx Xxxx Xxxxxx XX 00000 3,966,000.00
000 Xxxx Xxxxxx Apartments 000 Xxxx Xxxxxx Xxxxxx XX 00000 1,793,368.99
000 Xxxxx Xxxx Apartments 0000 Xxxxxxxx Xxxx Xxxxxx XX 00000 4,994,505.84
------------------------------------------------------------------------------------------------------------------------------------
109 Belmont Manor Nursing Home 00 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 5,060,070.51
000 Xxxxxxx Xxxxx Apartments 0000 Xxxxx Xxxxxx Xx. Xxxxxxx XX 00000 1,564,693.61
000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 1,199,124.64
000 Xxxxxxxxx Xxxxxxx 0000 Xxxx Xxxxxxx Xxxxxxx XX 00000 3,710,238.05
000 Xxxxxx Xxxx Retirement Center 0000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxx XX 00000 5,925,309.25
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000 3,597,666.46
000 Xxxxxxxx Xxxxxxxxxx 000 Xxxx 0xx Xxxxxx Xxxx XX 00000 5,034,000.00
000 Xxxxxxxxxx Xxxxx II 000 Xxxxx Xxxxxx Xxxx Xxxx Xxxx XX 00000 1,513,000.00
146 Clovelly Apartments 160 & 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 2,098,357.97
000 Xxxxxx Xxxxx 0000 Xxxxxx Xx. Xxx Xxxxx XX 00000 2,113,632.82
------------------------------------------------------------------------------------------------------------------------------------
103 Copper Mountain 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX 00000 5,200,000.00
000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 1,198,861.92
000 Xxxxxx Xxxxxxx 0000 Xxxx Xxxx Xxxxxx Xxxx Xxxxxx XX 00000 5,387,425.14
00 Xxxxxxx Xxxx Xxxxx 00000-00000 XX 00xx Xxx. Xxxxx XX 00000 6,319,358.33
112 Country House @ Westchester 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 4,748,509.75
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 4,892,693.60
000 Xxxxxxxxx Xxxxxxxxxx 00000 XX Xxxxxxx Xxxxxxx XX 00000 3,253,311.05
114 Del Moral 0000 X. Xxxxxxxx Xxxxxx Xxxxxx XX 00000 4,000,000.00
000 Xxxx Xxxxxxx Xxxx 00 Xxxx Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 1,433,580.72
000 Xxxx Xxxxx Xxxxxxxxx Care Home 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 2,781,301.74
------------------------------------------------------------------------------------------------------------------------------------
97 Eden Park Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000 5,994,328.37
00 Xxxxxxxx Xx Xxxxxxxx 00 Xxxxx Xxxxxx Xxxxxxxx XX 00000 8,966,160.41
116 Xxxxxxx Apartments 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 3,917,971.83
152 Executive Apartments 000-000 Xxxxxxxxx Xx Xxxxxxxxxx XX 00000 1,799,346.88
00 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Xxxx Xx Xxxx XX 00000 8,634,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxx Shopping Center 0000-0000 Xxxxx Xxxxxxx Xx Xxxxxxxx Xxxxxxx XX 00000 1,698,000.00
93 Four Winds Apartments 0000 Xxxxx Xxxxxx, Xxxxxx Xxxxxx Xx. XX 00000 6,383,992.93
000 Xxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 3,142,358.96
99 Gateway Health Care Centers Xxx & Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 6,360,609.34
000 Xxxxxxx Xxxxx 000 Xxxxx 00xx Xxxxxx Xxxxxxxx Xx 00000 2,828,354.11
------------------------------------------------------------------------------------------------------------------------------------
-25-
CONTROL MONTHLY RATE REMAINING REMAINING MATURITY GROUND SERVICING STRIP MORTGAGE LOAN
NUMBER PAYMENT TERM AMORT DATE LEASE FEES SELLER
------------------------------------------------------------------------------------------------------------------------------------
172 9,934.19 8.375 116 326 7/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
101 41,506.29 8.375 116 326 7/1/05 No 0.125 First Union
121 27,256.94 8.375 116 326 7/1/05 No 0.125 First Union
160 13,460.03 9.030 117 297 8/1/05 No 0.125 First Union
110 35,910.55 8.375 116 326 7/1/05 No 0.125 First Union
179 8,412.52 9.030 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
88 61,002.14 8.375 116 326 7/1/05 No 0.125 First Union
86 68,831.93 8.710 116 296 7/1/05 No 0.125 First Union
180 8,034.84 9.090 118 310 9/1/05 No 0.125 First Union
127 24,479.36 9.000 120 300 11/1/05 No 0.125 First Union
123 24,157.39 8.130 120 360 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
113 33,164.10 8.890 119 323 10/1/05 Yes 0.125 First Union
169 10,990.75 8.450 300 360 11/1/20 No 0.125 First Union
115 30,657.55 8.330 120 330 11/1/05 No 0.125 First Union
153 14,469.42 8.775 115 325 6/1/05 No 0.125 First Union
106 40,195.16 8.990 118 358 9/1/05 No 0.125 0.280 First Union
------------------------------------------------------------------------------------------------------------------------------------
109 45,661.60 9.860 115 295 6/1/05 No 0.125 0.915 First Union
164 13,573.39 9.400 299 299 10/1/20 No 0.125 First Union
176 9,625.36 8.750 119 329 10/1/05 No 0.125 First Union
117 34,788.82 10.300 109 289 12/1/04 No 0.125 First Union
100 60,873.17 10.740 74 230 1/1/02 No 0.125 0.915 First Union
------------------------------------------------------------------------------------------------------------------------------------
118 30,473.54 9.380 119 329 10/1/05 No 0.125 First Union
105 37,606.63 8.190 120 360 11/1/05 No 0.125 First Union
166 11,441.21 8.320 120 360 11/1/05 No 0.125 First Union
146 16,298.28 8.375 119 329 10/1/05 No 0.125 First Union
145 18,329.84 9.375 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
103 39,615.56 8.400 120 360 11/1/05 No 0.125 First Union
175 9,768.08 8.630 119 299 10/1/05 No 0.125 First Union
102 48,594.81 9.875 117 297 8/1/05 No 0.125 First Union
95 53,079.17 9.000 119 299 10/1/05 No 0.125 First Union
112 43,301.78 9.840 59 281 10/1/00 No 0.125 1.115 First Union
------------------------------------------------------------------------------------------------------------------------------------
108 38,969.08 8.652 118 328 9/1/05 No 0.125 First Union
124 28,357.08 9.460 299 299 10/1/20 No 0.125 First Union
114 30,870.00 8.540 300 360 11/1/20 No 0.125 First Union
170 11,434.38 8.375 119 299 10/1/05 No 0.125 First Union
131 27,057.72 10.020 235 235 6/1/15 No 0.125 0.915 First Union
------------------------------------------------------------------------------------------------------------------------------------
97 48,921.63 8.650 299 299 10/1/20 No 0.125 First Union
84 73,992.93 8.750 116 296 7/1/05 No 0.125 First Union
116 32,938.46 9.000 298 298 9/1/20 No 0.125 First Union
152 14,517.68 8.775 115 325 6/1/05 No 0.125 First Union-
85 64,500.53 8.190 120 360 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
156 13,387.88 8.250 120 300 11/1/05 No 0.125 First Union
93 54,308.61 9.400 114 325 5/1/05 No 0.125 First Union
126 24,133.38 8.230 117 327 8/1/05 No 0.125 First Union
99 64,679.92 11.420 74 290 1/1/02 No 0.125 0.915 First Union
130 23,799.61 9.000 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
-26-
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx Xxxxx 0000 Xxxx Xxxxx Xxxx Xxxx. Xxxxxxxxx XX 00000 3,500,000.00
00 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 9,788,714.97
94 Hibben Ferry 0000 Xxxx Xxxxx Xxxxxxxxx Xx. Xxxxxxxx XX 00000 6,357,995.17
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxx Xxxxxx X Xxxxxx XX 00000 1,871,939.59
183 Iroquois 000-000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 713,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 XXxxx Xxxxx (Xxxxxxxx,XX) 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 4,928,000.00
000 Xxxxxxxx Xxxx 00 Xxxx Xxxxxx Xxxxxxxx XX 00000 2,930,099.14
000 Xxxxxxx Xxxxxx Shopping Center 0000-0000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 2,597,680.89
162 Xxxxx Nursing & Rehabilitation Center 000 Xxxx Xxxxxx Xxxxxxxx XX 00000 1,606,250.83
000 Xxxxxx Xxxx Distribution 0000 Xxxxxx Xxxx Xxxxxxx XX 00000 3,570,871.92
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 999,270.53
111 Xxxx Xxxxxxxxxx Apartments 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 4,269,966.22
000 Xxxxxxxxx Xxxxx II 000-000 Xxxxxxxxx Xxxx Xxxxx XX 00000 2,023,000.00
000 Xxxxxxxxx Apartments 000-000 Xxxxxxxxx Xxxx Xxxxxx XX 00000 1,107,646.15
104 Mission Gorge 0000-0000 Xxxxxxx Xxxxx Xx Xxx Xxxxx XX 00000 5,136,400.60
------------------------------------------------------------------------------------------------------------------------------------
96 New Homestead Home for Adults 00-00 Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 6,873,084.85
000 Xxxxxxxxx Xxxxxxxx 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 1,925,000.00
000 Xxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 2,115,445.21
171 Olde English 000-000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 1,413,619.84
000 Xxxxxxxxx Xxxx Xxxxx Xxxxx Shoppi 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxxx XX 00000 2,395,963.17
------------------------------------------------------------------------------------------------------------------------------------
135 Palms Of Glendale 0000 X. 00xx Xxxxxx Xxxxxxxx XX 00000 2,540,347.40
000 Xxxxxx Xxxxxxxx 0000 X. Xxxxxx Xxxx Xxxxx XX 00000 2,377,000.00
00 Xxxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5,834,458.56
125 Phoenix North Xxx & Xxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 3,190,632.16
00 Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000 7,189,248.15
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91 Points Of Marietta 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 6,970,686.82
000 Xxxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxxx XX 00000 1,596,220.53
000 Xxxxx Xxxxx Xxxxxxxxxx 0-00 Xxxxx Xxxxx Xxxxxxx XX 00000 1,553,256.81
000 Xxxxx Xxxx Xxxxxxxxxx 000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 2,400,000.00
000 Xxxxxxxx Xxxxxxx 00000 XXX Xxxxxxxxx Xxxxxxx XX 00000 2,223,649.32
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174 Rush City Apartments 00 Xxxxx Xxxxxx Xxxx Xxxx XX 00000 1,124,000.00
89 Sam's Club Store 6641 & Store 6642 00000 X.X. Xxxxxxx 19 / 82 Pinellas Park FL 33614/34 7,636,483.34
000 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 1,586,499.21
000 Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 1,435,800.59
000 Xxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxxx XX 00000 2,623,489.74
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80 Tiburon Apartments 000 Xxxxx Xxxxxxx Xxxx Xxx Xxxx XX 00000 13,682,000.00
120 Timpany Xxxxx Xx. 00 - Xxxxxxx Xxxx. Xxxxxxx XX 00000 3,561,000.00
81 Towne Center Village (Combined) 0000 X.X. Xxxxxx Xxxxxx Xxxxxxxx XX 00000 13,241,198.08
82 Trails Of Woodlake 0000 Xxxxxxxxxx Xxxxxxx XX 00000 9,900,000.00
182 Treeview Manor Apartments 6620-6630 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx XX 00000 898,456.77
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000 Xxxxxxxx Xxxxxxx 000 Xxxx Xxxxx Xxxxxxxxx XX 00000 1,271,417.64
134 Villa Capri Apartments 00000 Xxxxxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 2,542,686.45
000 Xxxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxx XX 00000 945,873.31
000 Xxxxxxx xx Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 1,696,920.38
000 Xxxxxxx Xx Xxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxx. Xxxxxxxxxx XX 00000 1,567,268.40
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx Xx. XX 40 Xxxxxxxxxxxx XX 00000 2,934,843.93
154 Washington Towne Apartments 0000 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 1,748,338.93
000 Xxxxxxxxxxx Xxxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 1,446,556.31
000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 2,297,749.35
138 Wildwood Apartments 00000 Xxxx 00xx Xx. Xxxxx Xxxxxx XX 00000 2,407,676.36
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxxxxxxx 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 295,300.80
92 Williamsburg Apartments 0000 X. Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 6,674,808.31
00 Xxxxxxxx Xxxxx Apartments 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxx XX 00000 8,200,000.00
000 Xxxxx Xx Xxxxx Xxxx Apartments 00000 Xxxxxxxx Xxxxxx Xx. Xxxxxxx XX 00000 1,691,601.85
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-27-
CONTROL MONTHLY REMAINING REMAINING MATURITY GROUND SERVICING MORTGAGE LOAN
NUMBER PAYMENT RATE TERM AMORT DATE LEASE FEES STRIP SELLER
------------------------------------------------------------------------------------------------------------------------------------
122 27,888.73 8.375 120 300 11/1/05 No 0.125 First Union
83 77,194.65 8.764 118 358 9/1/05 No 0.125 First Union
94 47,133.51 8.080 80 356 7/1/02 No 0.125 First Union
150 15,751.72 9.000 117 297 8/1/05 No 0.125 First Union
183 6,017.69 9.070 120 300 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
107 40,097.57 8.625 120 300 11/1/05 No 0.125 First Union
129 23,370.76 8.375 119 299 10/1/05 No 0.125 First Union
132 21,819.11 9.000 119 299 10/1/05 Yes 0.125 First Union
162 14,488.45 9.875 117 297 8/1/05 No 0.125 First Union
119 35,128.02 10.940 107 288 10/1/04 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
178 8,021.14 8.750 119 329 10/1/05 No 0.125 First Union
111 33,344.85 8.656 118 358 9/1/05 No 0.125 First Union
147 16,119.69 8.375 120 300 11/1/05 No 0.125 First Union
177 8,814.79 8.625 116 326 7/1/05 No 0.125 First Union
104 43,660.30 9.125 117 297 8/1/05 Yes 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
96 70,216.05 10.570 226 226 9/1/14 No 0.125 0.455 First Union
149 15,338.80 8.375 120 300 11/1/05 No 0.125 First Union
144 16,652.22 8.500 116 326 7/1/05 No 0.125 First Union
171 11,127.64 8.500 116 326 7/1/05 No 0.125 First Union
140 20,760.56 9.375 118 298 9/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
135 21,140.12 8.875 298 298 9/1/20 No 0.125 First Union
141 18,940.43 8.375 120 300 11/1/05 No 0.125 First Union
98 43,333.74 8.100 116 356 7/1/05 No 0.125 First Union
125 25,767.27 8.500 117 297 8/1/05 No 0.125 First Union
90 57,220.63 8.644 82 328 9/1/02 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
91 53,138.18 8.400 119 359 10/1/05 No 0.125 First Union
159 12,417.74 8.375 117 327 8/1/05 No 0.125 First Union
165 12,532.15 8.775 115 325 6/1/05 No 0.125 First Union
139 18,354.42 8.210 120 330 11/1/05 No 0.125 First Union
143 17,092.56 8.490 119 359 10/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
174 8,937.42 8.350 300 300 11/1/20 No 0.125 First Union
89 62,959.75 8.750 81 297 8/1/02 No 0.125 First Union
161 12,693.36 8.375 79 295 6/1/02 No 0.125 First Union
168 12,092.82 9.000 116 296 7/1/05 No 0.125 First Union
137 20,650.89 8.750 119 359 10/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
80 102,211.75 8.190 120 360 11/1/05 No 0.125 First Union
120 28,374.79 8.375 120 300 11/1/05 No 0.125 First Union
81 110,937.33 9.250 119 329 10/1/05 No 0.125 First Union
82 74,236.24 8.230 120 360 11/1/05 No 0.125 First Union
182 7,713.65 9.260 118 298 9/1/05 No 0.125 0.280 First Union
------------------------------------------------------------------------------------------------------------------------------------
173 10,482.33 8.750 117 297 8/1/05 No 0.125 First Union
134 20,748.54 8.625 117 297 8/1/05 No 0.125 First Union
181 8,135.63 9.250 115 295 6/1/05 No 0.125 0.280 First Union
155 14,184.94 8.930 118 298 9/1/05 No 0.125 First Union
163 13,827.86 9.820 112 322 3/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
128 24,924.52 9.125 118 298 9/1/05 No 0.125 First Union
154 14,239.19 8.625 119 299 10/1/05 No 0.125 First Union
167 11,303.75 8.650 116 356 7/1/05 No 0.125 0.280 First Union
142 18,427.32 8.440 119 299 10/1/05 No 0.125 First Union
138 19,454.72 8.530 299 299 10/1/20 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
184 2,297.28 8.375 117 327 8/1/05 No 0.125 First Union
92 55,083.62 8.750 296 296 7/1/20 No 0.125 First Union
87 62,470.69 8.400 120 360 11/1/05 No 0.125 First Union
157 14,744.64 9.460 299 299 10/1/20 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
-28-
