EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of November 2, 2004
(this "Agreement"), is entered into between Xxxxxxx Xxxxx Mortgage Lending, Inc.
(the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of November 1, 2004 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Midland Loan Services, Inc., as
master servicer (in such capacity, the "Master Servicer"), X.X. Xxxxxx Company,
Inc., as special servicer (in such capacity, the "Special Servicer"), LaSalle
Bank National Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V.,
as fiscal agent. Capitalized terms used but not defined herein (including the
schedules attached hereto) have the respective meanings set forth in the Pooling
and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
November 2, 2004 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative
of Banc of America Securities LLC ("Banc of America"), PNC Capital Markets, Inc
("PNC"), IXIS Securities North America Inc. ("IXIS"), and X.X. Xxxxxx Securities
Inc. ("JPMSI"; Xxxxxxx Xxxxx, Banc of America, PNC, IXIS and JPMSI,
collectively, in such capacity, the "Underwriters"), whereby the Purchaser will
sell to the Underwriters all of the Certificates that are to be registered under
the Securities Act of 1933, as amended (such Certificates, the "Publicly-Offered
Certificates"). The Purchaser has also entered into a Certificate Purchase
Agreement, dated as of November 2, 2004 (the "Certificate Purchase Agreement"),
with Xxxxxxx Xxxxx, for itself and as representative of Banc of America
(together in such capacity, the "Initial Purchasers"), whereby the Purchaser
will sell to the Initial Purchasers all of the remaining Certificates (such
Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $438,622,029 (the "Merrill Mortgage Loan
Balance") (subject to a variance of plus or minus
5.0%) as of the close of business on the Cut-off Date, after giving effect to
any payments due on or before such date, whether or not such payments are
received. The Merrill Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-off Date (after
giving effect to any payments due on or before such date, whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-off Date Pool Balance") of $1,242,649,660 (subject to a variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take place on
November 10, 2004 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 106.81686% of the
Merrill Mortgage Loan Balance as of the Cut-off Date, plus (ii) $655,085, which
amount represents the amount of interest accrued on the Merrill Mortgage Loan
Balance at the related Net Mortgage Rate for the period from and including the
Cut-off Date up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to the Seller's
receipt of the Purchase Consideration and the satisfaction or waiver of the
conditions to closing set forth in Section 5 of this Agreement (which conditions
shall be deemed to have been satisfied or waived by the Seller's receipt of the
Purchase Consideration), the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. 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 Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will have,
on behalf of the Purchaser, delivered to the Trustee on or before the Closing
Date, the documents and instruments specified below with respect to each
Mortgage Loan (each, a "Mortgage File"). All Mortgage Files so delivered will be
held by the Trustee in escrow for the benefit of the Seller at all times prior
to the Closing Date. The Mortgage File with respect to each Mortgage Loan that
is not a Non-Serviced Trust Mortgage Loan shall contain the following documents:
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(i) the original executed Mortgage Note including any power of attorney
related to the execution thereof (or a lost note affidavit and indemnity
with a copy of such Mortgage Note attached thereto), together with any and
all intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of LaSalle Bank National Association, as trustee for
the registered holders of Xxxxxxx Xxxxx Mortgage Trust 2004-BPC1,
Commercial Mortgage Pass-Through Certificates, Series 2004-BPC1, or in
blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
or a certified copy of that assignment as sent for recording and any
missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2004-BPC1, Commercial Mortgage Pass-Through Certificates,
Series 2004-BPC1, or in blank;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan (to the extent not already assigned pursuant to clause (iv)
above) in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2004-BPC1, Commercial
Mortgage Pass-Through Certificates, Series 2004-BPC1, or in blank;
(vi) originals or copies of any consolidation, assumption, substitution
and modification agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
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(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, a UCC Financing Statement assignment, in form suitable for
filing in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2004-BPC1, Commercial
Mortgage Pass-Through Certificates, Series 2004-BPC1, as assignee, or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or reserve
agreement, any security agreement, any management agreement, any agreed
upon procedures letter, any lockbox or cash management agreements, any
environmental reports, or any letter of credit, in each case relating to
such Mortgage Loan;
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter; and
(xiii) with respect to each A-Note Trust Mortgage Loan, a copy of the
related A/B Intercreditor Agreement.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee and that is referred to in clause (viii) of the definition
of "Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Trustee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any such document
or instrument is lost or returned unrecorded or unfiled, 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
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done, as the case may be, and the Seller shall deliver such substitute or
corrected document or instrument to the Trustee (or, if the Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and the Seller has
taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and
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delivery hereof by the Purchaser) this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforcement may be limited by
(A) laws relating to bankruptcy, insolvency, fraudulent transfer,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
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(viii) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Seller, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would, in the Seller's good faith and reasonable judgment, prohibit its
entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(x) Each Mortgage Loan was either:
1. originated by a savings and loan association, savings bank,
commercial bank, credit union, insurance company, or similar
institution which is supervised and examined by a Federal or State
authority, or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the National
Housing Act (any of the foregoing, including the Seller, a "Qualified
Originator"); or
2. originated by a person that is not a Qualified Originator (a
"Non-Qualified Originator"), in which case,
(A) such Mortgage Loan was underwritten in accordance with
standards established by the Qualified Originator (which
standards are the same as the Seller's in all material respects),
using application forms and related credit documents approved by
the Qualified Originator;
(B) the Qualified Originator approved each application and
related credit documents before a commitment by the Non-Qualified
Originator was issued, and no such commitment was issued until
the Qualified Originator agreed to fund such Mortgage Loan;
(C) the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship with the
Qualified Originator; and
(D) the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator, and,
pursuant to the Non-Qualified Originator's ongoing, standing
relationship with the Qualified Originator, then
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(I) such closing documents reflect the Qualified
Originator as the original mortgagee, and such Mortgage Loan
was actually funded by the Qualified Originator at the
closing thereof;
(II) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include assignment
documents executed by the Non- Qualified Originator in favor
of the Qualified Originator at the time of the closing of
the Mortgage Loan, reflecting the Qualified Originator as
the successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the
Non-Qualified Originator at the closing thereof and then
acquired by the Qualified Originator from such Non-Qualified
Originator; or
(III) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include assignment
documents executed by the Non- Qualified Originator in favor
of the Qualified Originator at the time of the closing of
the Mortgage Loan, reflecting the Qualified Originator as
the successor and assign to the Non-Qualified Originator,
and the Mortgage Loan was funded initially by the Qualified
Originator at the closing thereof and then acquired by the
Qualified Originator from such Non-Qualified Originator.
Each Mortgaged Property consists of one or more separate tax parcels of
real property upon which is located one or more commercial structures and
otherwise meets the requirements for eligibility under the Secondary Mortgage
Market Enhancement Act of 1984 for commercial property.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the interest of
the Certificateholders therein, cure such Document Defect or Breach, as the case
may be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording
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office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan (which, for the purposes of this clause (i), shall include an REO
Loan) at the applicable Purchase Price (as defined in the Pooling and Servicing
Agreement) not later than the end of such 90-day period or (ii) substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan (which, for
purposes of this clause (ii), shall include an REO Loan) not later than the end
of such 90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the Master Servicer for deposit into the Collection
Account, any Substitution Shortfall Amount in connection therewith; provided,
however, that, unless the breach would cause the Mortgage Loan not to be a
Qualified Mortgage, if such Document Defect or Breach is capable of being cured
but not within such 90-day period and the Seller has commenced and is diligently
proceeding with the cure of such Document Defect or Breach within such 90-day
period, the Seller shall have an additional 90 days to complete such cure (or,
failing such cure, to repurchase or substitute the related Mortgage Loan (which,
for the purpose of such repurchase or substitution, shall include an REO Loan));
and provided, further, that with respect to such additional 90-day period, the
Seller shall have delivered an officer's certificate to the Trustee setting
forth the reason such Document Defect or Breach is not capable of being cured
within the initial 90-day period and what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that no Document Defect (other than with respect
to the Specially Designated Mortgage Loan Documents) shall be considered to
materially and adversely affect the interests of the Certificateholders or the
value of the related Mortgage Loan unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement of
the mortgagee's rights or remedies under the related Mortgage Loan, defending
any claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien or any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach as to a Mortgage Loan (which Document
Defect or Breach materially and adversely affects the value of the related
Mortgage Loan or the interest of the Certificateholders therein) that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), and is not cured as provided for above, shall require the repurchase or
substitution of all such Crossed Loans unless (1) the weighted average debt
service coverage ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less than
the weighted average debt service coverage ratio for all such Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters immediately
preceding such repurchase or substitution, and (2) the weighted average loan
to-value ratio for the remaining Crossed Loans determined at the time of
repurchase or substitution based upon an appraisal obtained by the Special
Servicer at the expense of the related Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan; provided, that if such debt service coverage and
loan-to-value criteria are satisfied and any Crossed Loan (that is not the
Crossed Loan directly affected by the subject Breach or Document Defect) is not
so materially and adversely affected and therefore is not so repurchased or
substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
(that is not the Crossed Loan directly affected by the subject Breach or
Document Defect) is held in the Trust Fund; and provided, further, that the
repurchase of less than all such Crossed Loans and the release of any Crossed
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Loan from a cross-collateralization and cross-default provision shall be subject
to the delivery by the Seller to the Trustee, at the expense of the Seller, of
an Opinion of Counsel to the effect that such release would not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions; and provided, further, that the
Controlling Class Representative (if one is then acting) shall have consented to
the repurchase or substitution of the affected Crossed Loan, which consent shall
not be unreasonably withheld.
For a period of two years from the Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is any
uncured Document Defect or Breach known to the Seller, the Seller shall provide,
once every ninety days, the officer's certificate to the Trustee described above
as to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; provided, however, that, without limiting
the effect of the foregoing provisions of this Section 3(c), if such Document
Defect or Breach shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein
(subject to the last proviso in the second preceding sentence), the Seller shall
in all cases on or prior to the second anniversary of the Closing Date either
cause such Document Defect or Breach to be cured or repurchase or substitute for
the affected Mortgage Loan.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not impair the ability of the other party to
exercise its remedies against the Primary Collateral securing the Crossed
Loan(s) held thereby.
If the exercise by one party would impair the ability of the other
party to exercise its remedies with respect to the Primary Collateral securing
the Crossed Loan(s) held by such party, then the Seller and the Purchaser shall
forbear from exercising such remedies until the Mortgage Loan documents
evidencing and securing the relevant Crossed Loans can be modified in a manner
consistent with this Agreement to remove the threat of impairment as a result of
the exercise of remedies. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
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The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy for a breach of the representation in paragraph 30 on
Schedule I hereto shall be the cure of such breach by the Seller, which cure
shall be effected through the payment by the Seller of such costs and expenses
(without regard to whether such costs and expenses are material or not)
specified in such paragraph that have not, at the time of such cure, been
received by the Master Servicer or the Special Servicer from the related
Mortgagor and not a repurchase of the related Mortgage Loan. To the extent any
fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price (as defined
in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as
applicable, in the Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loan(s).
(e) This Section 3 provides the sole remedy available to the Purchaser,
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and the Purchaser has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer,
11
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Purchaser, threatened against the Purchaser in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or other governmental agency or body, which default might have consequences that
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the condition (financial or
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other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) A letter from the independent accounting firm of Ernst & Young LLP
in form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of November 2, 2004 among the
Seller, Bank of America, N.A., PNC Bank, National Association, IXIS Real Estate
Capital Inc., the Purchaser, the Underwriters and the Initial Purchasers. Both
parties agree to use their best reasonable efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase the
Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing
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Rights Purchase Agreement, dated as of November 10, 2004, between the Seller and
Midland Loan Services, Inc., duly executed by such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omit to state therein a material fact necessary
in order to make the statements therein relating to the Mortgage Loans, in light
of the circumstances under which they were made, not misleading, and (ii) such
officer has carefully examined the Specified Portions of the Private Placement
Memorandum, dated as of November 2, 2004 (the "Memorandum") (pursuant to which
certain classes of the Private Certificates are being privately offered) and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement
14
(insofar as such diskette is consistent with Annex X-0, Xxxxx X-0 and/or Annex B
and the information contained in the diskette relates to the Mortgage Loans sold
by the Seller), and the following sections of the Prospectus Supplement (only to
the extent that any such information relates to the Seller or the Mortgage Loans
sold by the Seller hereunder and, without limitation, exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement): "Summary of
Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers," "Summary of
Prospectus Supplement--The Mortgage Loans And The Mortgaged Real Properties,"
"Risk Factors" and "Description of the Mortgage Pool". The "Specified Portions"
of the Memorandum shall consist of the Specified Portions of the Prospectus
Supplement (as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of Delaware not earlier than thirty (30) days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller relating to certain
corporate and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both the
Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser are parties with respect to
the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable
15
to the holder of the Mortgage Loans in accordance with the terms thereof, and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation,
all amounts, other than investment earnings (other than investment earnings
required by Section 3.19(a) of the Pooling and Servicing Agreement to offset
Prepayment Interest Shortfalls), from time to time held or invested in the
Collection Account, the Distribution Account or, if established, the REO Account
whether in the form of cash, instruments, securities or other property; (iii)
the assignment to the Trustee of the interest of the Purchaser as contemplated
by Section 1 of this Agreement shall be deemed to be an assignment of any
security interest created hereunder; (iv) the possession by the Trustee or any
of its agents, including, without limitation, the Custodian, of the Mortgage
Notes, and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be possession by the
secured party for purposes of perfecting the security interest pursuant to
Section 9-313 of the UCC of the applicable jurisdiction; and (v) notifications
to persons (other than the Trustee) holding such property, and acknowledgments,
receipts or confirmations from persons (other than the Trustee) holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement. The Seller
does hereby consent to the filing by the Purchaser of financing statements
relating to the transactions contemplated hereby without the signature of the
Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions
16
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 that prohibits or renders void or
unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party that obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party that commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
17
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 20. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
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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
------
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: /s/ Xxxxxx X. Xxx
----------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
Address for Notices:
Telecopier No.:
Telephone No.:
PURCHASER
---------
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxx X. Xxx
----------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
Address for Notices:
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.:
Telephone No.:
MLML MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in November 2004 without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in November
2004, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding upon
the title insurer); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the related
Mortgage File, an Assignment of Leases (either as a separate instrument or as
part of the Mortgage) that relates to and was delivered in connection with each
Mortgage Loan and that establishes and creates a valid, subsisting and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
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amendments or supplements thereto included in the related Mortgage File) has not
been impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) is in full
force and effect, all premiums thereon have been paid, no material claims have
been made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee as sole insured without the consent of or notice to
the insurer. Such Title Policy
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contains no exclusion for whether, or it affirmatively insures (unless the
related Mortgaged Property is located in a jurisdiction where such affirmative
insurance is not available) that, (a) the related Mortgaged Property has access
to a public road, and (b) the area shown on the survey, if any, reviewed or
prepared in connection with the origination of the related Mortgage Loan is the
same as the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). None of
the Mortgage Loan documents contains any provision that expressly excuses the
related Mortgagor from obtaining and maintaining insurance coverage for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release of
the related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable state law) with respect to each Mortgaged
Property securing a Mortgage Loan in connection with the origination of such
Mortgage Loan, (b) the report of each such assessment, update or screen, if any
(an "Environmental Report"), is dated no earlier than (or, alternatively, has
been updated within) twelve (12) months prior to the date hereof, (c) a copy of
each such Environmental Report has been delivered to the Purchaser, and (d)
either: (i) no such Environmental Report, if any, reveals that as of the date of
the report there is a material violation of applicable environmental laws with
respect to any known circumstances or conditions relating to the related
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Mortgaged Property; or (ii) if any such Environmental Report does reveal any
such circumstances or conditions with respect to the related Mortgaged Property
and the same have not been subsequently remediated in all material respects,
then one or more of the following are true--(A) one or more parties not related
to the related Mortgagor and collectively having financial resources reasonably
estimated to be adequate to cure the violation was identified as the responsible
party or parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional security
reasonably estimated to be adequate to cure the violations and/or to obtain and,
for the period contemplated by the related Mortgage Loan documents, maintain an
operations and maintenance plan, (C) the related Mortgagor, or other responsible
party, provided a "no further action" letter or other evidence that would be
acceptable to a reasonably prudent commercial mortgage lender, that applicable
federal, state or local governmental authorities had no current intention of
taking any action, and are not requiring any action, in respect of such
conditions or circumstances, (D) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation,
(E) the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto
are covered by environmental insurance policies and each such policy is
noncancellable during its term, is in the amount at least equal to 125% of the
principal balance of the Mortgage Loan, has a term ending no sooner than the
date which is five years after the maturity date of the Mortgage Loan to which
it relates and either does not provide for a deductible or the deductible amount
is held in escrow and all premiums have been paid in full. Each Mortgagor
represents and warrants in the related Mortgage Loan documents that except as
set forth in certain environmental reports and to its knowledge it has not used,
caused or permitted to exist and will not use, cause or permit to exist on the
related Mortgaged Property any hazardous materials in any manner which violates
federal, state or local laws, ordinances, regulations, orders, directives or
policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of hazardous materials. The related
Mortgagor (or affiliate thereof) has agreed to indemnify, defend and hold the
Seller and its successors and assigns
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harmless from and against any and all losses, liabilities, damages, injuries,
penalties, fines, expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by or asserted against,
any such party resulting from a breach of environmental representations,
warranties or covenants given by the Mortgagor in connection with such Mortgage
Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying the
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i) and (ii)) such limitations or unenforceability will not render such
loan documents invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged Property constitutes a manufactured housing community. If any
portion of the improvements on a Mortgaged Property securing any Mortgage Loan
was, at the time of the origination of such Mortgage Loan, in an area identified
in the Federal Register by the Flood Emergency Management Agency as a special
flood hazard area (Zone A or Zone V), and flood insurance
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was available, a flood insurance policy meeting the requirements of the then
current guidelines of the Federal Insurance Administration is in effect with a
generally acceptable insurance carrier, in an amount representing coverage not
less than the least of (1) the minimum amount required, under the terms of
coverage, to compensate for any damage or loss on a replacement basis, (2) the
outstanding principal balance of such Mortgage Loan, and (3) the maximum amount
of insurance available under the applicable National Flood Insurance
Administration Program. Each Mortgaged Property located in California or in
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than twenty percent
(20%) of the replacement value of the related improvements, calculated using
methodology acceptable to a reasonably prudent commercial mortgage lender with
respect to similar properties in the same area or earthquake zone. Each
Mortgaged Property located within Florida or within 25 miles of the coast of
North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas is insured by windstorm insurance in an amount at least equal to the
lesser of (i) the outstanding principal balance of the related Mortgage Loan and
(ii) 100% of the insurable replacement cost of the improvements located on such
Mortgaged Property. All such hazard and flood insurance policies contain a
standard mortgagee clause for the benefit of the holder of the related Mortgage,
its successors and assigns, as mortgagee, and are not terminable (nor may the
amount of coverage provided thereunder be reduced) without ten (10) days' prior
written notice to the mortgagee; and no such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Additionally, for
any Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such
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charge. For purposes of this representation and warranty, real property taxes
and assessments and other charges shall not be considered delinquent until the
date on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter
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further assignable by, the Purchaser upon notice to, but without the
consent of, the lessor thereunder (or, if such consent is required, it has
been obtained); provided that such Ground Lease has not been terminated and
all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds (other than de
minimis amounts for minor casualties) with respect to the leasehold
interest will be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage
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lender in the lending area where the related Mortgaged Property is located
at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and (ii) any such action without such consent is not binding
on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until such Mortgage Loan is paid in full, (a) additional interest
shall accrue and may be compounded monthly and shall be payable only after the
outstanding principal of such Mortgage Loan is paid in full, and (b) a portion
of the cash flow generated by such Mortgaged Property will be applied each month
to pay down the principal balance thereof in addition to the principal portion
of the related monthly payment.
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22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the related Mortgagor was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized
S-I-11
Mortgage Loans, the sum of the amounts of the respective Mortgages recorded on
the related Mortgaged Properties with respect to such Mortgage Loans is at least
equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Crossed Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or caused
the inspection of, the related Mortgaged Property within the preceding twelve
(12) months.
S-I-12
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers by devise or descent or by operation of law upon death,
transfers of less than a controlling interest in the Mortgagor, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Mortgagor,
transfers among affiliated Mortgagors with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase
S-I-13
by at least two (2) percentage points and (ii) the related Mortgagor is required
to enter into a lockbox arrangement on the ARD Loan whereby all revenue from the
related Mortgaged Property shall be deposited directly into a designated account
controlled by the applicable Master Servicer.
39. Security Interests. A UCC financing statement has been filed and/or
recorded, or submitted for filing and/or recording, in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more UCC financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a UCC financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its Stated Maturity Date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor, or an entity controlled by a principal of such Mortgagor for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only
S-I-14
after foreclosure or an action in respect thereof), rent (in some cases, only
after an event of default), insurance proceeds or condemnation proceeds. The
related Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured by a
Ground Lease and is the subject of paragraph 18, the interest of the related
Mortgagor in the Mortgaged Property securing each Mortgage Loan is a fee simple
interest in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Mortgagor, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent monthly
payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor impaired property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession related to
such Mortgaged Property;
S-I-15
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of the
Mortgage Loans.
S-I-16
ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
Representation #2
-----------------
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Loan Number Loan Name Description of Exception
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Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted.
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Representation #4
-----------------
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Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted.
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Representation #5
-----------------
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Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted.
The security interest created by the mortgage and
any separate security instrument is for the
benefit of the holders of both the A note loan and
the B note loan.
The security interest created by the assignment of
leases and rents (whether as a separate document or
as part of the mortgage) is for the benefit of the
holders
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----------------------------------------------------------------------------------------------------------------------
of both the A note loan and the B note loan.
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Representation #8
-----------------
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted. Only the
right, title and interest of the Seller in the A
note loan is being conveyed to the Purchaser.
The Title Policy was originally issued in the
amount of $8,350,000 (Parkdale Plaza), $16,000,000
(Hilton Garden Inn) and $33,892,500 for Prium
Office Portfolio II.
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Representation #10
------------------
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Loan Number Loan Name Description of Exception
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0000 Xxxxxxxx Xxxxxxxxx Although the mortgage requires terrorism
insurance, at the date of closing, acceptable
coverage was not in place. Instead, the lender
and borrower executed a side letter acknowledging
that the borrower is bound by the insurance
provisions of the loan documents and evidencing
the borrower's agreement that it will deliver to
the lender an insurance policy and coverages that
fully comply with all of the requirements of the
loan documents upon the earlier to occur of (a)
the renewal of the borrower's insurance on
December 27, 2004, or (b) the lender's request in
connection with the securitization and/or transfer
of the of the mortgage loan.
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Factory Stores at the Y The mortgage loan documents provide that at no
time shall the borrower be required to incur a
cost for a terrorism insurance policy that is in
excess of commercially reasonable rates for which
a prudent lender would require a borrower
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----------------------------------------------------------------------------------------------------------------------
similarly situated to obtain such terrorism
insurance. In the event the cost of the terrorism
insurance exceeds such commercially reasonable
rates, the borrower shall be required to obtain
and maintain a terrorism insurance policy
providing coverage for as much of the loss, cost,
damage and liability caused by terrorism as is
available for a premium which is determined by the
lender to be commercially reasonable with respect
to a property which is similarly situated.
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St. Peter's College As of the date of the closing, the Borrower was
not required to obtain terrorism insurance
provided however, that upon the request of Lender,
and provided further that the terrorism insurance
is available at commercially acceptable rates and
a prudent lender would require a borrower
similarly situated to obtain said terrorism
insurance, then borrower shall promptly obtain, or
cause to be obtained terrorism insurance in
accordance with the terms of the mortgage loan
documents.
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Mall 205 and Saddle Rock The borrower is only obligated to purchase as much
Marketplace terrorism coverage as can be purchased for a cost
equal to two times (2x) the cost of a separate
terrorism policy on the date of closing.
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Walgreens-Naperville The mortgage loan documents provide that Walgreens
& Co. may self-insure
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----------------------------------------------------------------------------------------------------------------------
with respect to the related mortgaged property
provided certain conditions set forth in the
mortgage are met. Walgreens is in fact self-insuring
with respect to this property therefore, a separate
policy of terrorism insurance was not required.
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Lodgian Hospitality Portfolio Borrower is required to maintain business
Pool #2 interruption and/or rent loss insurance providing
coverage for a period commencing on the date of
the casualty and ending at least six (6) months after
completion of the restoration of the affected
Mortgaged Property.
The Mortgage Loan documents require each insurance
carrier to have a rating of at least AA-. However,
in the event of syndicated coverages, only 75%, if
four or fewer insurers are in the syndicate, or
60%, if 5 or more insurers are in the syndicate, are
required to have a rating of at least AA- as long as
the others are at least BBB.
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Representation #12
------------------
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Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Innovation Center of Vermont Environmental matters to be reviewed to determine
presence or absence of an exception.
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Representation #14
------------------
----------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx Although the mortgage requires terrorism
insurance, at the date of closing, acceptable
coverage was not in place. Instead, the lender
and borrower executed a side letter acknowledging
that the borrower is bound by the insurance
provisions of the loan documents and evidencing
the borrower's agreement that it will deliver to
the lender an insurance policy and coverages that
fully comply with all of the requirements of the
loan
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----------------------------------------------------------------------------------------------------------------------
documents upon the earlier to occur of (a)
the renewal of the borrower's insurance on
December 27, 2004, or (b) the lender's request in
connection with the securitization and/or transfer
of the of the mortgage loan.
----------------------------------------------------------------------------------------------------------------------
St. Peter's College As of the date of the closing, the Borrower was
not required to obtain terrorism insurance
provided however, that upon the request of Lender,
and provided further that the terrorism insurance
is available at commercially acceptable rates and
a prudent lender would require a borrower
similarly situated to obtain said terrorism
insurance, then borrower shall promptly obtain, or
cause to be obtained terrorism insurance in
accordance with the terms of the mortgage loan
documents.
----------------------------------------------------------------------------------------------------------------------
Walgreens-Naperville The mortgage loan documents provide that Walgreens
& Co. may self-insure with respect to the related
mortgaged property provided certain conditions set
forth in the mortgage are met. Walgreens is in
fact self-insuring with respect to this property
therefore, a separate policy of terrorism
insurance was not required.
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Representation #17
------------------
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Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza A number of city violations relating to
handicapped parking and access at the property
have been identified. An undertaking agreement
was executed at loan closing requiring that
evidence be provided that all of these were
cleared up no later than October 15, 2004.
----------------------------------------------------------------------------------------------------------------------
Park Place North Apartments The mortgaged property consists of several
buildings all of which comply with zoning.
However, three of the buildings which make up part
of the mortgaged property are not constructed in
accordance with the zoning requirements with
respect
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----------------------------------------------------------------------------------------------------------------------
to setbacks and are nonconforming. However, the
borrower and indemnitors shall be personally liable
hereunder for any and all "Costs" (as defined in
the related mortgage note) arising out of or in
connection with the status of the mortgaged
property as nonconforming with respect to zoning on
account of setback violations affecting the
mortgaged property.
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Representation #18
------------------
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx The ground lessor is not required to give the
lender notice of default, and the lender does not
have cure rights. The leasehold estate is a
relatively minor portion of the collateral, and
the borrower and the ground lessor have contracted
that borrower will purchase the fee interest, at
which point the borrower's fee interest will be
included in the collateral.
----------------------------------------------------------------------------------------------------------------------
Lodgian Hospitality Portfolio If Lender or a third party purchaser at foreclosure
Pool #2 were to succeed to the lessee's interest of the
related Borrower under the Ground Leases for the
Mortgaged Properties known as the Holiday Inn - BWI
Airport, Linthicum, Maryland and the Holiday Inn,
East Hartford, Connecticut following foreclosure,
transfer by deed-in-lieu thereof or otherwise,
further assignment of the Ground Lease would be
subject to the consent of the lessor thereunder, not
to be unreasonably withheld or delayed.
The current term of the Ground Lease for the Holiday
Inn - BWI Airport, Linthicum, Maryland expires on
September 11, 2013 and includes three 10 year
extension options. Lender was not given an express
right to exercise such extension options on the
applicable Borrower's behalf. The current term of the
Ground Lease for the East Hartford,
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Connecticut Mortgaged Property expires on April 30,
2007 and is subject to three 15 year extension
options. Pursuant to a separate estoppel and
agreement executed by the ground lessor, Lender may
exercise such extension options on the applicable
Borrower's behalf.
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Representation #23
------------------
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Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
All Loans The borrower under the related mortgage loan
documents is not explicitly required to pay any
applicable expenses, including any applicable
rating agency fees in connection with the related
borrower seeking the lender's consent to an
encumbrance.
-----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted. Only the right,
title and interest of Seller in the A Loan is being
conveyed to the Purchaser.
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Representation #28
------------------
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Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
Shops at Janaf The related mortgage loan documents provide for the
release of an unimproved portion of the related
mortgaged property without payment of a release price
provided that the conditions set forth in
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-----------------------------------------------------------------------------------------------------------------------
the mortgage have been satisfied.
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Representation #30
------------------
-----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
All Loans The loan documents require the borrower to pay all
costs and expenses of the lender in connection with a
defeasance and assumption but they do not
specifically address rating agency fees.
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Representation #34
------------------
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Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
Factory Stores at the Y (a) The mortgage loan documents provide that the
lender will not withhold its consent to a transfer
of the related Mortgaged Property in its entirety
so long as certain conditions in the Mortgage Loan
(including, without limitation, execution of an
assumption agreement by the transferee, transferee
is an SPE and no event of default exists).
(b) The Mortgage Loan documents provide that during
the term of the loan, provided that there is no event
of default under the Mortgage Loan documents, the
owners of direct and indirect membership interests in
the borrower shall be permitted to obtain mezzanine
financing ("Mezzanine Financing") in connection with
the related Mortgaged Property by pledging their
membership interests in the borrower to an acceptable
lender (the "Mezz Lender"), provided, however, that
certain conditions precedent set forth in the
Mortgage Loan documents are met (including, without
limitation, the approval by the lender of the terms
of the Mezzanine Financing and the execution and
delivery of a subordination and standstill agreement
and with the mortgaged property meeting certain
loan-
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
to-value and debt service coverage ratio tests).
-----------------------------------------------------------------------------------------------------------------------
Riverside General Plaza Phase II (a) The related Mortgage provides that the
definition of "Original Principals" include Xxxx
Xxxxxxxxx (not an indemnitor of the loan) as well
as Mapleton Investments, LLC and Xxxxxx Xxxxx.
Each of these individuals/entity owns, directly or
indirectly, 45% of the managing member of the
borrower, Riverside Investment Partners, LLC
("Riverside Investment Partners").
Riverside Investment Partners, LLC is the managing
member of the borrower. Mapleton Investments, LLC
has a 45% interest in Riverside Investment
Partners, and therefore, a 22.50% interest in the
Borrower. Falcon Cable Trust has a 99% interest in
Mapleton Investments, LLC, and therefore a 22.27%
interest in the Borrower. Xxxxxx X. Xxxxx Separate
Property Trust has a 45% interest in Riverside
Investment Partners, and therefore, a 22.50%
interest in the
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Borrower.
(b) The mortgage provides that upon the death of
either Xxxxxx Xxxxx or Xxxx Xxxxxxxxx, the loan shall
not be immediately due and payable so long as
Riverside Investment Partners remains the managing
member of the borrower, and Riverside Investment
Partners is controlled by the surviving Original
Principal(s) and the heirs and legatees of the
non-surviving Original Principal(s), so long as such
persons are reasonably acceptable to the lender, or
management of the mortgaged property is transferred
to a professional property manager reasonably
acceptable to the lender.
(c) The borrower is made up of two members: REA
Associates Riverside, LLC ("REA Associates") and
Riverside Investment Partners, LLC. The mortgage
permits the free transferability of the interest of
REA Associates in the borrower to Riverside
Investment Partners with no fee or cost to the
borrower other than out-of-pocket expenses, including
the cost of a no down-grade letter (excluding any
legal fees). REA Associates' interest in the borrower
is to be acquired by a new entity controlled by the
Original Principals instead of a direct acquisition
by Riverside Investment Partners to avoid a single
member LLC.
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Representation #35
------------------
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Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
The Lakes at College The borrower is not a single purpose entity.
Pointe II & III
-----------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx The Borrower was not newly formed and while the
organizational documents currently have the
required single-purpose entity provisions, they
did not have it at formation
-----------------------------------------------------------------------------------------------------------------------
St. Peter's College As of the closing date, the borrower was
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
not a single purpose entity. The borrower is a
not-for-profit corporation. The borrower undertook to
form a new SPE entity and upon its receipt of its
not-for-profit status, the related mortgaged
properties will be transferred to the new SPE
borrower pursuant to the conditions and stipulations
set forth in the mortgage.
-----------------------------------------------------------------------------------------------------------------------
Lodgian Hospitality Portfolio Certain Borrowers previously owned properties
Pool #2 other than the mortgaged properties securing the
Mortgage Loan.
-----------------------------------------------------------------------------------------------------------------------
Representation #37
------------------
-----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza The property does not sit on a separate tax lot
currently, although the borrower has submitted an
application for the creation of a separate tax
lot. The loan documents include an undertaking by
which the borrower has to provide evidence that a
separate tax lot has been created by January 15,
2005.
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Representation #39
------------------
-----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
Parkdale Plaza, Hilton Garden Inn Each Mortgage Loan is the A note loan in an A/B
and Prium Office Portfolio II loan structure comprised of two mortgage loans,
both of which are secured by the same mortgage
instrument and are cross-defaulted.
The security interest created by the UCC financing
statement is for the benefit of the holders of both
the A Loan and the B Loan.
-----------------------------------------------------------------------------------------------------------------------
Representation #43
------------------
-----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
-----------------------------------------------------------------------------------------------------------------------
All loans except Factory The related Mortgage Loan documents provide for the
Stores at Y recourse for damages,
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-----------------------------------------------------------------------------------------------------------------------
liabilities, expenses or claims in connection with
the borrower's intentional or gross negligent conduct
with respect to waste.
-----------------------------------------------------------------------------------------------------------------------
Factory Stores at the Y The related Mortgage Loan documents provide for
recourse for damages, liabilities, costs and expenses
in connection with the fraud or material
misrepresentation to the lender.
-----------------------------------------------------------------------------------------------------------------------
Representation #45
------------------
----------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
----------------------------------------------------------------------------------------------------------------------
Shops at Janaf The interest of the related Borrower in the Mortgaged
Property secured by the related Mortgage Loan is a
leasehold interest.
----------------------------------------------------------------------------------------------------------------------
Lodgian Hospitality Portfolio The interests of the related Borrowers in the
Pool #2 Mortgaged Properties located in East Hartford,
Connecticut, Linthicum, Maryland and Albany, New
York are leasehold interests.
----------------------------------------------------------------------------------------------------------------------
Representation #47
------------------
---------------------------------------------------------------------------------------------------------------------
Loan Number Loan Name Description of Exception
---------------------------------------------------------------------------------------------------------------------
All loans except 3020 Wilshire The Mortgage Loan documents do not require
Boulevard, Landmark Building and quarterly operating statements and rent rolls.
X-Xxxx XXX 0 Xxxxxxxxx Xxxx #4 However, the mortgage does provide that the
borrower will provide "such other information"
relating to the mortgaged property as the lender
requests from time to time.
---------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxxx Xxxxxxxxx and During the first 12 months of the loan term, the
Landmark Builiding borrower is required to provide, promptly upon
request, operating statements for the Property for
the immediately preceding 12-month period and a rent
roll for the preceding month. Additionally, the
borrower is required to provide annually, within 30
days after the end of each calendar year, operating
statements for the mortgaged property for the
immediately preceding 12-month period and a rent roll
for the Property containing the name of each tenant,
the
---------------------------------------------------------------------------------------------------------------------
space occupied by such tenant, the lease commencement
and expiration dates, security deposit, rent,
additional rent, arrearages, and such other
information as may customarily be reflected thereon
or reasonably requested by the lender.
---------------------------------------------------------------------------------------------------------------------
X-Xxxx XXX 0 Xxxxxxxxx Xxxx #4 Annual rent rolls and within 60 days of lender's
request and annual operating statements
---------------------------------------------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE
LOAN WERE WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS
AND LEAD-BASED PAINT.
(REPRESENTATION 12)
[None.]
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
[None.]
MORTGAGE PROPERTY
LOAN # PROPERTY NAME LOAN SELLER TYPE ADDRESS
------ ------------- ----------- ---- -------
2 Lodgian Portfolio 2 MLML Hospitality Various
2.01 Crowne Plaza - Albany MLML Hospitality 00 Xxxxx Xxxxxx
2.02 Holiday Inn - BWI Airport MLML Hospitality 000 Xxxxxxxx Xxxxxxx Xxxx
2.03 Courtyard by Marriott - Lafayette MLML Hospitality 000 Xxxx Xxxxxxx Xxxxxx Xxxx
2.04 Residence Inn - Dedham MLML Hospitality 000 Xxx Xxxxxx
2.05 Courtyard by Marriott - Tulsa MLML Hospitality 0000 Xxxxx 00xx Xxxx Xxxxxx
2.06 Holiday Inn - Pittsburgh MLML Hospitality 000 Xxxxxxx Xxxxx
2.07 Holiday Inn - York MLML Hospitality 000 Xxxxxxx Xxxx
2.08 Marriott Fairfield Inn - Augusta MLML Hospitality 201 Boy Scout Road
2.09 Holiday Inn - E. Hartford MLML Hospitality 000 Xxxxxxx Xxxxxx
4 Mall 205 MLML Retail 9880, 9900 & 00000 Xxxxxxxxx Xxxxxxxxxx Xxxxxx
6 Prium Office Portfolio MLML Office Various
6.01 Triplex Building MLML Office 000-000 Xxxxxxxx Xxxxx
6.02 Quad A Building MLML Office 000 Xxxxxxxx Xxxxxx Xxxx
6.03 Quad D Building MLML Office 000 Xxxxxxxx Xxxxxx Xxxx
6.04 Quad C Building MLML Office 000 Xxxxxxxx Xxxxxx Xxxx
6.05 Quad B Building MLML Xxxxxx 000 Xxxxxxxx Xxxxxx Xxxx
0.00 Xxxxxx Xxxxxxxx XXXX Xxxxxx 000 Xxxxxxxx Xxxxxx Xxxx
6.07 Prudential Building XXXX Xxxxxx 000 Xxxxxxxx Xxxxxx Xxxx
6.08 Xxxxxxx Building MLML Office 110 West K Street
6.09 Port Angeles Building MLML Office 0000 Xxxx Xxxxx Xxxxxx
6.1 Olympia Building MLML Office 715 8th Avenue East
7 U Haul Portfolio 1 MLML Self Storage Various
7.01 U-Haul Storage Of Sunrise MLML Self Storage 0000 Xxx Xxxx Xxxx
7.02 U-Haul Storage Colmar MLML Self Storage 000 Xxxxxxxxx Xxxx
7.03 U-Haul Storage Country Club MLML Self Storage 0000 Xxxxxxx Xxxx Xxxxx
7.04 U-Haul Storage 00xx Xxxxxx xxx Xxxxxxx 00 XXXX Self Storage 0000 00xx Xxxxxx
7.05 U-Haul Storage Cedar Ridge MLML Self Storage 0000 Xxxxx Xxxxx Xxxxx Xxxxx
7.06 U-Haul Storage Ferndale MLML Self Storage 0000 Xxxxxxx Xxxx
7.07 U-Haul Storage Ocala MLML Self Storage 0000 Xxxxx Xxxx Xxxxxx
7.08 U-Haul Storage Franklin Park MLML Self Storage 0000 Xxxxxx Xxxxxx
7.09 U-Haul Storage Worthington Galena MLML Self Storage 0000 Xxxxxxxxxxx Xxxxxx Xxxx
7.1 U-Haul Storage Xxxxxx MLML Self Storage 000 Xxxxxxx Xxxx
7.11 U-Haul Storage Xxxxxx Lake MLML Self Storage 0000 Xxxx Xxxxxxx 00
7.12 U-Haul Stg Granville Station MLML Self Storage 0000 Xxxxx Xxxxxxxxx Xxxx
7.13 U-Haul Storage Spring Hill MLML Self Storage 00000 Xxxxxx Xxxxxxxxx
7.14 U-Haul Storage Moon Lake MLML Self Storage 00000 Xxxxx Xxxx 52
7.15 U-Haul Storage South Loop 29 MLML Self Storage 205 Southwest X.X. Xxxxxx Loop
7.16 U-Haul Storage Riverdale MLML Self Storage 0000 Xxxxxxxxx Xxxx
7.17 U-Haul Storage Longwood MLML Self Storage 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
7.18 U-Haul Storage Holyoke MLML Self Storage 000 Xxxxxxxx Xxxxxx
9 U Haul Portfolio 2 MLML Self Storage Various
9.01 U-Haul Storage Route 9 MLML Self Storage 0000 Xxxxx 0
9.02 U-Haul Storage Xxxxxx MLML Self Storage 000 Xxxx Xxxxxx Xxxx
9.03 U-Haul Storage N Royalton MLML Self Storage 0000 Xxxxxxxx Xxxx
9.04 U-Haul Storage Orangethorpe MLML Self Storage 0000 Xxxx Xxxxxxxxxxxx Xxxxxx
9.05 U-Haul Storage Ayer MLML Self Storage 00 Xxxxxxxxx Xxxx
9.06 U-Haul Storage Eustis MLML Self Storage 00000 Xxxx X.X. Xxxxxxx 000
9.07 U-Haul Storage Swansea MLML Self Storage 000 X.X.X. Xxxxxxx
9.08 U-Haul Center Research Blvd MLML Self Storage 00000 Xxxxx Xxxxxxx 000
9.09 U-Haul Storage Seminole MLML Self Storage 0000 Xxxxxxxx Xxxxxxxxx
9.1 U-Haul Storage Xxxxxx Street MLML Self Storage 000 Xxxxxx Xxxxxx
9.11 U-Haul Storage Xxxxx Xxxxx Blv MLML Self Storage 00000 Xxxxx Xxxxx Xxxxxxxxx
9.12 U-Haul Storage Xxxxxx MLML Self Storage 00000 XX Xxxxxxx 00
9.13 U-Haul Storage Kingston MLML Self Storage 000 Xxxxxx Xxxxxx Mall
9.14 U-Haul Storage Xxxx Xxxx MLML Self Storage 0000 Xxxxxxxx Xxxxxxxxx
9.15 U-Haul Storage Stratford Sq MLML Self Storage 4N 000 00xx Xxxxx
9.16 U-Haul Storage Route 2 MLML Self Storage 000 Xxxxxxx Xxxxxx
14 Innovation Center of Vermont MLML Mixed Use 000 Xxxxxxxx Xxxxxx
17 The Lakes @ College Pointe II & III MLML Multifamily 0000 Xxxxx Xxxxx
00 Xxxxx Xxxx Xxxxxx Xxxxxxxx XXXX Xxxxxx 200 East Long Lake Road
21 Hilton Garden Inn MLML Hospitality 24150 Park Sorrento
27 Saddle Rock Marketplace MLML Retail 0000 Xxxxx Xxx Xxxx Xxxx
29 Xxxx Xxxxxx Blvd. Portfolio MLML Industrial Various
29.01 7537 Xxxx Xxxxxx Boulevard MLML Industrial 7537 Xxxx Xxxxxx Boulevard
29.02 7500 Xxxx Xxxxxx Boulevard MLML Industrial 7500 Xxxx Xxxxxx Boulevard
29.03 7333 Xxxx Xxxxxx Boulevard MLML Industrial 7333 Xxxx Xxxxxx Boulevard
29.04 2525 Xxxxxxx Ederville Road MLML Industrial 2525 Xxxxxxx Ederville Road
35 Britannia Business Center MLML Office 3400, 3440 and 0000 Xxxx Xxxxxxxxx Xxxxx
38 Landmark Building MLML Office 00000 Xxxx Xxxxxxx Xxxxx
41 3020 Wilshire Boulevard MLML Mixed Use 0000 Xxxxxxxx Xxxxxxxxx
45 St. Peter's College MLML Multifamily 00 Xxxxxxxx Xxxxxx,
000 Xxxxxxxx Xxxxxx, 000 Xxxxxxxx Xxxxxx,
000 Xxxxxxxx Avenue, 000-000 Xxxxxxxx Xxxxxx,
000 Xxxx Xxxx Xxxxxx, 0000 XXX Xxxxxxxxx
46 Shops at JANAF MLML Retail 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxxx
49 Glencoe Crossing MLML Retail 4585-4747 Xxxxxxxxx Xxxxxx
00 Factory Stores at the Y MLML Retail 0000 Xxxx Xxxxx Xxxxxxxxx
52 Parkdale Plaza MLML Retail 0000-0000 Xxxxxx Xxxx
57 000 Xxxxxxx Xxxxxxx XXXX Xxxxxx 000 Xxxxxxx Xxxxxxx
58 Coconut Palms II MLML Multifamily 0000 Xxxxxx Xxxx
59 Old Spanish Trail MLML Retail 9525 and 0000 Xxxx Xxx Xxxxxxx Xxxxx
65 1900 West Xxxxxx MLML Office 0000 Xxxx Xxxxxx Xxxxxx Xxxxx
68 Stadium Place MLML Retail 0000 Xxxxxxxx Xxxxxxx Xxxxx
71 Sun Pointe Apartments MLML Multifamily 0000 Xxxxxxxxx Xxxxx
77 Walgreen's - Naperville MLML Retail 0000 Xxxxxxx Xxxx
79 Riverside General Plaza Phase II MLML Retail 0000-0000 Xxxxxxxx Xxxxxx
80 0000 Xxxxxxxx Xxxxxx MLML Mixed Use 0000 Xxxxxxxx Xxxxxx
83 West Valley Plaza MLML Retail 000-000 Xxxx Xxxxxx Xxxx
84 Park Place North Apartments MLML Multifamily 0000 Xxxxx Xxxxxx Xxxxxx
93 Chino Hills Retail MLML Retail 0000 Xxxxx Xxxxxx
ZIP CUTOFF BALANCE ORIGINAL IO MONTHLY
LOAN # CITY COUNTY STATE CODE (11/1/2004) BALANCE DEBT SERVICE
------ ---- ------ ----- ---- ----------- ------- ------------
2 Various Various Various Various 70,536,870.16 70,618,886
2.01 Albany Xxxxxx XX 00000 23,223,296.98 23,250,300
2.02 Xxxxxxxxx Xxxx Xxxxxxx XX 00000 21,251,441.88 21,276,152
2.03 Xxxxxxxxx Xxxxxxxxx XX 00000 5,897,648.39 5,904,506
2.04 Dedham Xxxxxxx XX 00000 5,529,356.43 5,535,786
2.05 Tulsa Xxxxx XX 00000 5,016,733.82 5,022,567
2.06 Xxxxxxxxxx Xxxxxxxxx XX 00000 3,571,436.69 3,575,589
2.07 Xxxx Xxxx XX 00000 2,463,574.65 2,466,439
2.08 Xxxxxxx Xxxxxxxx XX 00000 2,189,844.12 2,192,390
2.09 Xxxx Xxxxxxxx Xxxxxxxx XX 00000 1,393,537.17 1,395,157
4 Xxxxxxxx Xxxxxxxxx XX 00000 44,000,000.00 44,000,000 214,914.03
6 Various Various WA Various 31,769,678.59 31,800,000
6.01 Xxxxx Xxxxxxxx XX 00000 8,351,029.66 8,359,000
6.02 Xxxxx Xxxxxxxx XX 00000 4,023,160.24 4,027,000
6.03 Xxxxx Xxxxxxxx XX 00000 3,871,305.17 3,875,000
6.04 Xxxxx Xxxxxxxx XX 00000 3,719,450.11 3,723,000
6.05 Xxxxx Xxxxxxxx XX 00000 3,567,595.04 3,571,000
6.06 Xxxxx Xxxxxxxx XX 00000 3,415,739.97 3,419,000
6.07 Xxxxx Xxxxxxxx XX 00000 2,809,318.75 2,812,000
6.08 Xxxxxxx Xxxxx XX 00000 949,094.17 950,000
6.09 Port Angeles Xxxxxxx XX 00000 645,384.04 646,000
6.1 Xxxxxxx Xxxxxxxx XX 00000 417,601.44 418,000
7 Various Various Various Various 30,773,889.51 30,920,000
7.01 Sunrise Xxxxxxx XX 00000 5,344,624.41 5,370,000
7.02 Colmar Xxxxxxxxxx XX 00000 3,652,657.65 3,670,000
7.03 Xxxxxxxxxx Xxxxxx XX 00000 2,557,855.63 2,570,000
7.04 Sacramento Xxxxxxxxxx XX 00000 2,518,044.65 2,530,000
7.05 Xxxxxxxxxxx Xxxxxx XX 00000 1,721,825.00 1,730,000
7.06 Xxxxxxxx Xxxxxxx XX 00000 1,672,061.27 1,680,000
7.07 Ocala Xxxxxx XX 00000 1,652,155.78 1,660,000
7.08 Xxxxxx Xxxxx XX 00000 1,612,344.79 1,620,000
7.09 Xxxxxxxxxxx Xxxxxxxx XX 00000 1,512,817.34 1,520,000
7.1 Xxxxxx Xxxxxxx XX 00000 1,254,045.95 1,260,000
7.11 Maplewood Xxxxxx XX 00000 1,224,187.71 1,230,000
7.12 Xxxxxxxxx Xxxxxxxxx XX 00000 1,074,896.53 1,080,000
7.13 Xxxxxxxxxxx Xxxxxxxx XX 00000 1,035,085.55 1,040,000
7.14 Xxxxxx Xxxxx XX 00000 915,652.60 920,000
7.15 Xxxxxx Xxxx XX 00000 895,747.11 900,000
7.16 Xxxxxxx Xxxx Xxxxxxx XX 00000 895,747.11 900,000
7.17 Longwood Xxxxxxxx XX 00000 676,786.70 680,000
7.18 Holyoke Xxxxxxx XX 00000 557,353.76 560,000
9 Various Various Various Various 27,529,294.42 27,660,000
9.01 Toms River Xxxxx XX 00000 3,433,697.24 3,450,000
9.02 Xxxxxxxx Xxxx Xxxxxxxx XX 00000 2,707,146.81 2,720,000
9.03 Xxxxx Xxxxxxxx Xxxxxxxx XX 00000 2,527,997.39 2,540,000
9.04 Xxxxxxxxx Xxxxxx XX 00000 2,468,280.92 2,480,000
9.05 Ayer Xxxxxxxxx XX 00000 2,368,753.46 2,380,000
9.06 Xxxxxx Xxxx XX 00000 2,318,989.73 2,330,000
9.07 Swansea Xxxxxxx XX 00000 2,289,131.50 2,300,000
9.08 Xxxxxx Xxxxxx XX 00000 1,811,399.71 1,820,000
9.09 Seminole Xxxxxxxx XX 00000 1,691,966.76 1,700,000
9.1 Chesapeake Xxxxxxxxxx Xxxx XX 00000 1,403,337.13 1,410,000
9.11 Xxxxxx Xxxxxx XX 00000 885,794.36 890,000
9.12 Xxxxxx Xxxxx XX 00000 885,794.36 890,000
9.13 Xxxxxxxx Xxxxxx XX 00000 796,219.65 800,000
9.14 Xxxx Xxxxx Xxxxxxx XX 00000 726,550.43 730,000
9.15 Xxxxxxx Xxxx XxXxxx XX 00000 716,597.69 720,000
9.16 Leominster Xxxxxxxxx XX 00000 497,637.28 500,000
14 Xxxxxxxxxx Xxxxxxxxxx XX 00000 23,000,000.00 23,000,000 114,168.11
00 Xxxx Xxxxx Xxx XX 00000 20,281,632.72 20,300,000
18 Xxxxxxxxxx XxxxxXxxxxxx XX 00000 20,250,000.00 20,250,000
21 Calabasas Xxx Xxxxxxx XX 00000 15,500,000.00 15,500,000
27 Aurora Xxxxxxxx XX 00000 14,000,000.00 14,000,000 70,499.07
00 Xxxx Xxxxx Xxxxxxx XX 00000 13,500,000.00 13,500,000
29.01 Xxxx Xxxxx Xxxxxxx XX 00000 4,829,912.02 4,829,912
29.02 Xxxx Xxxxx Xxxxxxx XX 00000 3,602,639.30 3,602,639
29.03 Xxxx Xxxxx Xxxxxxx XX 00000 2,771,261.00 2,771,261
29.04 Xxxxxxxx Xxxxx Xxxxxxx XX 00000 2,296,187.68 2,296,188
35 Xxxxxx Xxxx XX 00000 12,400,000.00 12,400,000 58,146.53
00 Xxxxxxxxxxxx Xxxxxxx XX 00000 11,178,105.69 11,200,000
00 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 10,390,887.21 10,400,000
00 Xxxxxx Xxxx Xxxxxx XX 00000 8,978,017.03 9,000,000
00 Xxxxxxx Xxxxxxx Xxxx XX 00000 8,800,000.00 8,800,000
00 Xxx Xxxxx Xxxxxxxxx XX 00000 8,175,000.00 8,175,000
00 Xxxxx Xxxx XxxxxXx Xxxxxx XX 00000 8,000,000.00 8,000,000 37,175.93
00 Xxxxxxxx Xxxxxxxxx XX 00000 7,829,416.23 7,840,000
00 Xxxxxxx Xxxxxxx XX 00000 6,160,000.00 6,160,000 29,926.62
58 Xxxxxxx Xxxxxx XX 00000 6,000,000.00 6,000,000
00 Xxxxxx Xxxx XX 00000 5,844,311.30 5,850,000
00 Xxxx Xxxxxx Xxx Xxxxxxx XX 00000 5,195,235.42 5,200,000
00 Xxxxxxxxxx Xxxxxxx XX 00000 5,000,000.00 5,000,000
00 Xxxxxxx Xxxxx Xxxxxxx XX 00000 4,495,609.07 4,500,000
77 Xxxxxxxxxx XxXxxx XX 00000 3,746,683.73 3,750,000
79 Xxxxxxxxx Xxxxxxxxx XX 00000 3,500,000.00 3,500,000
00 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 3,495,257.03 3,500,000
83 Xxxxx Xxxxxxxx XX 00000 3,300,000.00 3,300,000
84 Xxxxxxxxxxx Xxxxxx XX 00000 3,296,945.85 3,300,000
00 Xxxxx Xxxxx Xxx Xxxxxxxxxx XX 00000 1,695,194.86 1,700,000
IO ANNUAL MONTHLY P&I ANNUAL P&I INTEREST PRIMARY SERVICING MASTER SERVICING
LOAN # DEBT SERVICE DEBT SERVICE DEBT SERVICE RATE (%) FEE RATE FEE RATE
------ ------------ ------------ ------------ -------- -------- --------
2 481,968 5,783,615 6.5770 0.02000 0.02000
2.01 6.5770
2.02 6.5770
2.03 6.5770
2.04 6.5770
2.05 6.5770
2.06 6.5770
2.07 6.5770
2.08 6.5770
2.09 6.5770
4 2,578,968 257,639 3,091,671 5.7810 0.02000 0.02000
6 179,561 2,154,727 5.4500 0.02000 0.02000
6.01 5.4500
6.02 5.4500
6.03 5.4500
6.04 5.4500
6.05 5.4500
6.06 5.4500
6.07 5.4500
6.08 5.4500
6.09 5.4500
6.1 5.4500
7 211,196 2,534,347 6.6250 0.02000 0.02000
7.01 6.6250
7.02 6.6250
7.03 6.6250
7.04 6.6250
7.05 6.6250
7.06 6.6250
7.07 6.6250
7.08 6.6250
7.09 6.6250
7.1 6.6250
7.11 6.6250
7.12 6.6250
7.13 6.6250
7.14 6.6250
7.15 6.6250
7.16 6.6250
7.17 6.6250
7.18 6.6250
9 188,929 2,267,142 6.6250 0.02000 0.02000
9.01 6.6250
9.02 6.6250
9.03 6.6250
9.04 6.6250
9.05 6.6250
9.06 6.6250
9.07 6.6250
9.08 6.6250
9.09 6.6250
9.1 6.6250
9.11 6.6250
9.12 6.6250
9.13 6.6250
9.14 6.6250
9.15 6.6250
9.16 6.6250
14 1,370,017 136,054 1,632,644 5.8750 0.02000 0.02000
17 117,307 1,407,687 5.6600 0.02000 0.02000
18 120,110 1,441,322 5.9000 0.02000 0.02000
21 107,905 1,294,861 6.8330 0.02000 0.02000
27 845,989 83,577 1,002,929 5.9600 0.02000 0.02000
29 77,714 932,563 5.6250 0.02000 0.02000
29.01 5.6250
29.02 5.6250
29.03 5.6250
29.04 5.6250
35 697,758 70,795 849,544 5.5500 0.02000 0.02000
38 65,005 780,058 5.7000 0.02000 0.02000
41 60,930 731,156 5.7860 0.02000 0.02000
45 61,473 737,682 6.6250 0.02000 0.02000
46 50,358 604,298 5.5710 0.00000 0.02000
49 46,782 561,379 5.5710 0.02000 0.02000
51 446,111 45,423 545,077 5.5000 0.02000 0.02000
52 49,133 589,591 5.7100 0.02000 0.02000
57 359,119 35,948 431,377 5.7500 0.02000 0.02000
58 34,335 412,021 5.5710 0.00000 0.02000
59 32,740 392,881 5.3700 0.00000 0.02000
65 29,885 358,619 5.6100 0.02000 0.02000
68 28,767 345,204 5.6200 0.02000 0.02000
71 25,145 301,745 5.3560 0.00000 0.02000
77 21,884 262,608 5.7500 0.02000 0.02000
79 21,641 259,695 6.2900 0.02000 0.02000
80 21,892 262,704 5.6900 0.02000 0.02000
83 19,174 230,090 5.7100 0.02000 0.02000
84 18,882 226,587 5.5700 0.02000 0.02000
93 9,921 119,049 5.7500 0.02000 0.02000
TRUSTEE & PAYING BROKER STRIP ADMIN. NET MORTGAGE ACCRUAL REMAINING
LOAN # AGENT FEE RATE FEE INTEREST RATE TYPE TERM TERM
------ --------- ---- --- ------------- ---- ---- ----
2 0.00170 0.04170 6.5353 Actual/360 57 56
2.01 56
2.02 56
2.03 56
2.04 56
2.05 56
2.06 56
2.07 56
2.08 56
2.09 56
4 0.00170 0.04170 5.7393 Actual/360 120 118
6 0.00170 0.04170 5.4083 Actual/360 120 119
6.01 119
6.02 119
6.03 119
6.04 119
6.05 119
6.06 119
6.07 119
6.08 119
6.09 119
6.1 119
7 0.00170 0.04170 6.5833 Actual/360 120 116
7.01 116
7.02 116
7.03 116
7.04 116
7.05 116
7.06 116
7.07 116
7.08 116
7.09 116
7.1 116
7.11 116
7.12 116
7.13 116
7.14 116
7.15 116
7.16 116
7.17 116
7.18 116
9 0.00170 0.04170 6.5833 Actual/360 120 116
9.01 116
9.02 116
9.03 116
9.04 116
9.05 116
9.06 116
9.07 116
9.08 116
9.09 116
9.1 116
9.11 116
9.12 116
9.13 116
9.14 116
9.15 116
9.16 116
14 0.00170 0.04170 5.8333 Actual/360 120 119
17 0.00170 0.04170 5.6183 Actual/360 120 119
18 0.00170 0.04170 5.8583 Actual/360 125 125
21 0.00170 0.04170 6.7913 Actual/360 120 120
27 0.00170 0.04170 5.9183 Actual/360 120 117
29 0.00170 0.04170 5.5833 Actual/360 120 120
29.01 120
29.02 120
29.03 120
29.04 120
35 0.00170 0.04170 5.5083 Actual/360 120 120
38 0.00170 0.04170 5.6583 Actual/360 120 118
41 0.00170 0.04170 5.7443 Actual/360 120 119
45 0.00170 0.04170 6.5833 Actual/360 120 118
46 0.00170 0.05000 0.07170 5.4993 Actual/360 84 84
49 0.00170 0.05000 0.09170 5.4793 Actual/360 84 84
51 0.00170 0.04170 5.4583 Actual/360 120 119
52 0.00170 0.04170 5.6683 Actual/360 120 119
57 0.00170 0.04170 5.7083 Actual/360 120 118
58 0.00170 0.05000 0.07170 5.4993 Actual/360 84 84
59 0.00170 0.04000 0.06170 5.3083 Actual/360 120 119
65 0.00170 0.04170 5.5683 Actual/360 120 119
68 0.00170 0.04170 5.5783 Actual/360 120 120
71 0.00170 0.05000 0.07170 5.2843 Actual/360 84 83
77 0.00170 0.04170 5.7083 Actual/360 120 119
79 0.00170 0.04170 6.2483 Actual/360 120 120
80 0.00170 0.04170 5.6483 Actual/360 120 119
83 0.00170 0.04170 5.6683 Actual/360 120 120
84 0.00170 0.04170 5.5283 Actual/360 120 119
93 0.00170 0.04170 5.7083 Actual/360 120 117
MATURITY/ AMORT REMAINING TITLE ARD ARD STEP ENVIRONMENTAL
LOAN # ARD DATE TERM AMORT TERM TYPE (Y/N) UP (%) REPORT TYPE
------ -------- ---- ---------- ---- ----- ------ -----------
2 7/1/2009 297 296 Various No Phase I
2.01 Leasehold Phase I
2.02 Leasehold Phase I
2.03 Fee Phase I
2.04 Fee Phase I
2.05 Fee Phase I
2.06 Fee Phase I
2.07 Fee Phase I
2.08 Fee Phase I
2.09 Leasehold Phase I
4 9/1/2014 360 360 Fee No Phase I
6 10/1/2014 360 359 Fee No Phase I
6.01 Fee Phase I
6.02 Fee Phase I
6.03 Fee Phase I
6.04 Fee Phase I
6.05 Fee Phase I
6.06 Fee Phase I
6.07 Fee Phase I
6.08 Fee Phase I
6.09 Fee Phase I
6.1 Fee Phase I
7 7/1/2014 300 296 Fee No Phase I
7.01 Fee Phase I
7.02 Fee Phase I
7.03 Fee Phase I
7.04 Fee Phase I
7.05 Fee Phase I
7.06 Fee Phase I
7.07 Fee Phase I
7.08 Fee Phase I
7.09 Fee Phase I
7.1 Fee Phase I
7.11 Fee Phase I
7.12 Fee Phase I
7.13 Fee Phase I
7.14 Fee Phase I
7.15 Fee Phase I
7.16 Fee Phase I
7.17 Fee Phase I
7.18 Fee Phase I
9 7/1/2014 300 296 Fee No Phase I
9.01 Fee Phase I
9.02 Fee Phase I
9.03 Fee Phase I
9.04 Fee Phase I
9.05 Fee Phase I
9.06 Fee Phase I
9.07 Fee Phase I
9.08 Fee Phase I
9.09 Fee Phase I
9.1 Fee Phase I
9.11 Fee Phase I
9.12 Fee Phase I
9.13 Fee Phase I
9.14 Fee Phase I
9.15 Fee Phase I
9.16 Fee Phase I
14 10/1/2014 360 360 Fee No Phase I
17 10/1/2014 360 359 Fee No Phase I
18 4/1/2015 360 360 Fee No Phase I
21 11/1/2014 300 300 Fee No Phase I
27 8/1/2014 360 360 Fee No Phase I
29 11/1/2014 360 360 Fee No Phase I
29.01 Fee Phase I
29.02 Fee Phase I
29.03 Fee Phase I
29.04 Fee Phase I
35 11/1/2014 360 360 Fee No Phase I
38 9/1/2014 360 358 Fee No Phase I
41 10/1/2014 360 359 Fee/Leasehold No Phase I
45 9/1/2014 300 298 Fee No Phase I
46 11/1/2011 360 360 Leasehold No Phase I
49 11/1/2011 360 360 Fee No Phase I
51 10/1/2014 360 360 Fee No Phase I
52 10/1/2014 300 299 Fee No Phase I
57 9/1/2014 360 360 Fee No Phase I
58 11/1/2011 360 360 Fee No Phase I
59 10/1/2014 360 359 Fee No Phase I
65 10/1/2014 360 359 Fee No Phase I
68 11/1/2014 360 360 Fee No Phase I
71 10/1/2011 360 359 Fee No Phase I
77 10/1/2014 360 359 Fee No Phase I
79 11/1/2014 360 360 Fee No Phase I
80 10/1/2014 300 299 Fee No Phase I
83 11/1/2014 360 360 Fee No Phase I
84 10/1/2014 360 359 Fee No Phase I
93 8/1/2014 360 357 Fee No Phase I
ENVIRONMENTAL CROSS- CROSS- DEFEASANCE LETTER
LOAN # INSURANCE (Y/N) DEFAULTED COLLATERALIZED ALLOWED OF CREDIT
------ --------------- --------- -------------- ------- ---------
2 No Yes No
2.01 No
2.02 No
2.03 No
2.04 No
2.05 No
2.06 No
2.07 No
2.08 No
2.09 No
4 No Yes Yes
6 No Yes No
6.01 No
6.02 No
6.03 No
6.04 No
6.05 No
6.06 No
6.07 No
6.08 No
6.09 No
6.1 No
7 No Yes Yes Yes No
7.01 No
7.02 No
7.03 No
7.04 No
7.05 No
7.06 No
7.07 No
7.08 No
7.09 No
7.1 No
7.11 No
7.12 No
7.13 No
7.14 No
7.15 No
7.16 No
7.17 No
7.18 No
9 No Yes Yes Yes No
9.01 No
9.02 No
9.03 No
9.04 No
9.05 No
9.06 No
9.07 No
9.08 No
9.09 No
9.1 No
9.11 No
9.12 No
9.13 No
9.14 No
9.15 No
9.16 No
14 No Yes No
17 No Yes No
18 No Yes No
21 No Yes No
27 No Yes Yes
29 No Yes No
29.01 No
29.02 No
29.03 No
29.04 No
35 No Yes No
38 No Yes No
41 No Yes No
45 No Yes No
46 No Yes No
49 No Yes Yes
51 No Yes No
52 No Yes No
57 No Yes No
58 No Yes Yes
59 No No No
65 No Yes No
68 No Yes No
71 No Yes No
77 No Yes No
79 No Yes No
80 No Yes No
83 No Yes No
84 No Yes No
93 No Yes No
LOCKBOX HOLDBACK UPFRONT ENG. UPFRONT CAPEX UPFRONT ENVIR. UPFRONT TI/LC UPFRONT RE
LOAN # IN-PLACE AMT RESERVE RESERVES RESERVE RESERVE TAX RESERVE
------ -------- --- ------- -------- ------- ------- -----------
2 Yes 3,329,429.00 1,237.50 300,000.00
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
4 12,500.00 519,222.12
6 Yes 350,000.00
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 Yes 21,031.25 296,917.78
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
9 Yes 21,018.75 105,000.00 188,131.61
9.01
9.02
9.03
9.04
9.05
9.06
9.07
9.08
9.09
9.1
9.11
9.12
9.13
9.14
9.15
9.16
14 Yes
17 267,168.00
18 No 3,705,380.00 85,437.66
21 Yes 76,394.30
27 96,950.00
29 44,429.00 500,000.00
29.01
29.02
29.03
29.04
35 115,000.00 400,000.00 45,327.39
38 550,000.00 188,122.34
41 7,500.00 1,500.00 19,157.36
45 1,567,062.50 93,750.00
46 22,291.82
49 31,175.00 21,612.00 88,833.63
51 405,000.00 15,892.41
52 120,267.98
57 27,000 280,000.00 13,250.00
58 98,800.00 53,281.61
59 3,875.70
65 40,683.00 100,000.00 22,713.76
67
68 115,187.50 26,789.14
71 Yes
77 26,775.00
79 47,059.00 20,000.00 63,060.87
80 34,523.54
83 120,000.00 34,600.00 11,712.85
84 28,290.50
93
UPFRONT UPFRONT
INSURANCE OTHER
LOAN # RESERVE RESERVE UPFRONT OTHER DESCRIPTION
------ ------- ------- -------------------------
2 538,200.00 482,542.18 Ground Rent Reserve
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
4 594,566.00 (Performance Bike) Tenant Completion Reserve: $244,566; (Dress Barn
termination) Lease-Up Holdback: $350,000.
6
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
9
9.01
9.02
9.03
9.04
9.05
9.06
9.07
9.08
9.09
9.1
9.11
9.12
9.13
9.14
9.15
9.16
14
17 18,674.60
18 1,200,000.00 Rent Shortfall Reserve
21 43,468.95
27 10,168.20 757,685.00 Rent/CAM Reserve
29 52,386.25
29.01
29.02
29.03
29.04
35 40,000.00 Xxxxx Reserve
38
41 42,000.00
45
46 21,266.61 888,500.00 Catherine's Occupancy Reserve (730,000); Tenant Occupancy Reserve (150,000);
Xxxxx Fargo Tenant Improvements Reserve (8,500)
49 14,132.16 455,250.00 Tenant Occupancy Reserve (455,000); Letter of Credit Transfer Reserve (250)
51 5,575.76
52 25,222.00
57 3,441.81
58 6,762.00 250 Letter of Credit Transfer Reserve
59 177,000.00 Southwest Pizza/Starbucks Reserve
65
67
68 10,600.80
71 6,671.35
77
79 571,550.00 Checks Into Cash Reserve (400,000.00); Construction Allowance and Leasing
Commissions Reserve (171,550.00)
80 1,454.51
83
84 15,581.81
93
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX ENVIR. TI/LC MONTHLY RE INSURANCE OTHER
LOAN # RESERVE RESERVE RESERVE TAX RESERVE RESERVE RESERVE
------ ------- ------- ------- ----------- ------- -------
2 4.00% 82,600.00 46,200.00 168,152.14
2.01
2.02
2.03
2.04
2.05
2.06
2.07
2.08
2.09
4 4,846.00 4,147.00 43,268.51 6,667.00
6 3,599.08 12,500.00 29,513.16 4,001.38
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
6.1
7 11,567.95 63,613.18 16,726.49
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.1
7.11
7.12
7.13
7.14
7.15
7.16
7.17
7.18
9 11,033.14 52,321.84 16,663.37
9.01
9.02
9.03
9.04
9.05
9.06
9.07
9.08
9.09
9.1
9.11
9.12
9.13
9.14
9.15
9.16
14 22,300.86 5,295.33
17 4,600.00 24,288.00 9,337.30
18 2,493.00 32,469.14 3,109.14
21 16,002.00 13,369.00 7,244.83
27 823 1,667.00 24,237.50 1,271.03
29 3,616.00 6,944.44 29,855.81 5,238.63
29.01
29.02
29.03
29.04
35 2,182.00 15,109.13
38 1,542.00 23,515.29
41 1,213.00 4,000.00 3,192.89 3,500.00
45 4,862.83
46 910.18 5,643.00 7,430.61 3,038.09
49 1,557.83 6,777.00 14,651.44 2,018.88
51 648 3,178.48 1,858.59
52 1,225.00 12,026.80 2,802.44
57 886 4,416.67 688.36
58 2,264.00 5,920.18 966
59 496 2,083.00 2,260.82
65 1,060.00 2,778.00 7,125.00 1,711.76
68 4.00% 2,419.35 883.4
71 441 2,475.00 3,827.02 953.05
77 2,816.33
79 4,462.50
80 174 558 15,765.22 1,454.51
83 514 3,411.00 11,507.85
84 1,163.00 4,177.00 1,123.15 2,423.84
93 109 3,143.50
OTHER
MONTH TOTAL UNIT OF GRACE LOAN
LOAN # DESCRIPTION SF/UNITS MEASURE PERIOD GROUP
------ ----------- -------- ------- ------ -----
2 Ground Rent 1,484 Rooms 0 1
2.01 384 Rooms 1
2.02 259 Rooms 1
2.03 90 Rooms 1
2.04 81 Rooms 1
2.05 122 Rooms 1
2.06 201 Rooms 1
2.07 100 Rooms 1
2.08 117 Rooms 1
2.09 130 Rooms 1
4 Dress Barn Rollover Reserve - capped at $80,000 305,103 SF 5 1
6 287,921 SF 5 1
6.01 76,143 SF 1
6.02 36,454 SF 1
6.03 33,345 SF 1
6.04 33,184 SF 1
6.05 33,184 SF 1
6.06 26,981 SF 1
6.07 22,848 SF 1
6.08 12,000 SF 1
6.09 9,800 SF 1
6.1 3,982 SF 1
7 921,912 SF 5 1
7.01 96,420 SF 1
7.02 70,675 SF 1
7.03 77,428 SF 1
7.04 57,360 SF 1
7.05 68,175 SF 1
7.06 49,365 SF 1
7.07 61,334 SF 1
7.08 38,540 SF 1
7.09 52,100 SF 1
7.1 27,500 SF 1
7.11 49,925 SF 1
7.12 46,850 SF 1
7.13 32,129 SF 1
7.14 33,875 SF 1
7.15 31,610 SF 1
7.16 41,375 SF 1
7.17 35,980 SF 1
7.18 51,271 SF 1
9 876,587 SF 5 1
9.01 72,943 SF 1
9.02 148,720 SF 1
9.03 56,260 SF 1
9.04 43,875 SF 1
9.05 42,275 SF 1
9.06 62,492 SF 1
9.07 44,720 SF 1
9.08 70,719 SF 1
9.09 56,399 SF 1
9.1 46,020 SF 1
9.11 37,479 SF 1
9.12 53,420 SF 1
9.13 27,350 SF 1
9.14 53,255 SF 1
9.15 32,400 SF 1
9.16 28,260 SF 1
14 217,383 SF 5 1
17 276 Units 5 2
18 150,427 SF 5 1
21 142 Rooms 5 1
27 65,800 SF 5 1
29 433,969 SF 5 1
29.01 145,565 SF 1
29.02 107,020 SF 1
29.03 71,384 SF 1
29.04 110,000 SF 1
35 163,663 SF 5 1
38 92,522 SF 5 1
41 72,604 SF 5 1
45 152 Units 5 1
46 109,221 SF 5 1
49 93,470 SF 5 1
51 51,801 SF 5 1
52 100,967 SF 5 1
57 52,423 SF 7 1
58 96 Units 5 2
59 42,836 SF 5 1
65 47,615 SF 5 1
68 35,246 SF 5 1
71 119 Units 5 2
77 13,650 SF 5 1
79 13,938 SF 5 1
80 30,840 SF 5 1
83 49,861 SF 5 1
84 125 Units 5 2
93 8,736 SF 5 1
