Exhibit 99.3
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21, 2005
(this "Agreement"), is entered into between PNC Bank, National Association
(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 June 1, 2005
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
Midland Loan Services, Inc. as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity, the "Special Servicer"),
and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized terms used
but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of June 21, 2005 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as
representative of Countrywide Securities Corporation ("Countrywide"), PNC
Capital Markets, Inc. ("PNC") and Wachovia Capital Markets, LLC ("Wachovia";
Xxxxxxx Xxxxx, Countrywide, PNC and Wachovia, 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
June 21, 2005 (the "Certificate Purchase Agreement"), with Xxxxxxx Xxxxx, for
itself and as representative of Countrywide (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 $301,233,846 (the "PNC Bank 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 PNC Bank
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
$1,737,992,952 (subject to a variance of plus or minus 5%). The purchase and
sale of the Mortgage Loans shall take place on June 29, 2005 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) 103.5079% of the PNC Bank Mortgage Loan
Balance as of the Cut-off Date, plus (ii) $1,259,951, which amount represents
the amount of interest accrued on the PNC Bank Mortgage Loan Balance at the
related Net Mortgage Rate for the period from and including the Cut-off Date
up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, the Closing Date Deposit (in the amount of $218,782.09) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall be
delivered to the account specified by the Master Servicer by wire transfer of
immediately available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to 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 upon 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 and all of the Seller's right,
title and interest in and to the Closing Date Deposit. The Mortgage Loan
Schedule, as it may be amended, shall conform to the requirements set forth in
this Agreement and the Pooling and Servicing Agreement.
(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 (i) on or before
the Closing Date, the documents and instruments specified below with respect
to each Mortgage Loan that are Specially Designated Mortgage Loan Documents
and (ii) on or before the date that is 30 days after the
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Closing Date, the remaining documents and instruments specified below that are
not Specially Designated Mortgage Loan Documents with respect to each Mortgage
Loan (the documents and instruments specified below and referred to in clauses
(i) and (ii) preceding, collectively, 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. Each Mortgage File shall
contain the following documents:
(i) the original executed Mortgage Note for the subject Mortgage
Loan, 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
Xxxxx Fargo Bank, N.A., as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-MCP1, or in blank;
(ii) an original or copy of the Mortgage, together with originals or
copies of 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
originals or copies of 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) and any missing recording information or a certified copy of that
assignment as sent for recording), 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 subject
Mortgage Loan otherwise included in the Mortgage File, in favor of Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series 2005-MCP1, or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above) in favor of Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MCP1, Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, 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 subject Mortgage Loan has been assumed;
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(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;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the subject 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 Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1, 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 the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
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
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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 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.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
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:
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(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
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 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 charter 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 charter, 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
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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.
(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.
(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 materially and
adversely affects the value of the related Mortgage Loan or the interests 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 office) cannot be cured within
such 90-day period, (i) repurchase the affected Mortgage Loan
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(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 Document Defect or 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 purposes 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(s) 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 a Specially
Designated Mortgage Loan Document) 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 on any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan 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"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed
Loan Group (without regard to this paragraph) and is not cured as provided for
above, shall be deemed to constitute a Document Defect or Breach, as the case
may be, as to each other Crossed Loan in the subject Crossed Loan Group for
purposes of this paragraph and the Seller shall be required to repurchase or
substitute 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 Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan determined at the time of repurchase or substitution
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller; provided, that if such debt service coverage and loan-to-value
criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan
directly affected by the subject Document Defect or Breach), shall be released
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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
Document Defect or Breach) is held in the Trust Fund; and provided, further,
that the repurchase or replacement of less than all such Crossed Loans and the
release of any Crossed Loan from a cross-collateralization and cross-default
provision shall be further subject to (i) 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 (ii) the consent of the Controlling Class Representative
(if one is then acting), which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Document
Defect or Breach exists or to repurchase or substitute for all of the Crossed
Loans in the related Crossed Loan Group. All documentation relating to the
termination of the cross-collateralization provisions of a Crossed Loan being
repurchased shall be prepared at the expense of the Seller and, where
required, with the consent of the related borrower. 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 reason(s) 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 sole sentence of the preceding paragraph), 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. The delivery of a commitment to issue a policy
of lender's title insurance as described in representation 8 set forth on
Schedule I hereto in lieu of the delivery of the actual policy of lender's
title insurance shall not be considered a Document Defect or Breach with
respect to any Mortgage File if such actual policy of insurance is delivered
to the Trustee or a Custodian on its behalf not later than the 90th day
following the Closing Date.
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 materially
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 materially 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
material 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
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the Mortgage Loan documents, or, if the related Mortgage Loan documents do not
so provide, then 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.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released), (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
documents and the Seller provides 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 (iii) each Rating Agency then rating the Certificates
shall have provided written confirmation that such release would not cause the
then-current ratings of the Certificates rated by it to be qualified,
downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth 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 representation 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 or
substitution of the related Mortgage Loan. Following the Seller's remittance
of funds in payment of such costs and expenses, the Seller shall be deemed to
have cured the breach of representation 30 in all respects. 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. Notwithstanding the prior provisions of this
paragraph, the Seller, acting in its sole discretion, may effect a repurchase
or substitution (in accordance with the provisions of this Section 3(c)
setting forth the manner in which a Mortgage Loan may be repurchased or
substituted) of a Mortgage Loan, as to which representation 30 set forth on
Schedule I has been breached, in lieu of paying the costs and expenses that
were the subject of the breach of representation 30 set forth on Schedule I.
(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 applicable
Purchase Price (as defined in the Pooling and Servicing Agreement) or
Substitution Shortfall Amount(s), as applicable, in the Collection
10
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 be
required to 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).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution
shall be part of REMIC I, as applicable. No substitution of a Qualified
Substitute Mortgage Loan for a deleted Mortgage Loan shall be permitted under
this Agreement if, after such substitution, the aggregate of the Stated
Principal Balances of all Qualified Substitute Mortgage Loans which have been
substituted for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of all the Mortgage Loans and the Other Mortgage Loans. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan on or
prior to the related date of substitution shall not be part of the Trust Fund
or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming
the due authorization, execution and delivery
11
hereof by the Seller) this Agreement constitutes the valid, legal and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of creditors
generally, or (C) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound, which
default might have consequences that would, in the Purchaser's reasonable and
good faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Purchaser or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser
of its obligations under this Agreement (except to the extent such consent has
been obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of
any transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser
as a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental
12
agency or body, which default might have consequences that would, in the
Purchaser's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Purchaser or
its properties or might have consequences that would materially and adversely
affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP
on the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4
of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller 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) One or more letters from the independent accounting firms of
Ernst & Young LLP and PricewaterhouseCoopers LLP, in form satisfactory to the
Purchaser and 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 June 21, 2005,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., Countrywide Commercial
Real Estate Finance, 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:
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(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 Rights Purchase Agreement, dated as of June
29, 2005, 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 June 21, 2005 (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
14
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 (insofar as such diskette is consistent with Annex
X-0, Xxxxx X-0 and/or Annex B), and the following sections of the Prospectus
Supplement (only to the extent that any such information relates to the Seller
or the Mortgage Loans sold by the Seller hereunder and exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"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 charter and bylaws of the Seller, and
(iii) a certificate of corporate existence of the Seller issued by the Office
of the Comptroller of the Currency not earlier than thirty (30) days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller relating to
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, including as to insolvency matters, 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 (or
affiliates thereof) 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
15
all of the Seller's right, title and interest in and to the Mortgage Loans,
and all amounts payable to the holder of the Mortgage Loans in accordance with
the terms thereof, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls),
from time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, 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
16
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law 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.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
SELLER
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PNC Bank 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 June 2005 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 June 2005, 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. With respect to each Mortgage
Loan, since the later of (a) May 31, 2005 and (b) the closing date of such
Mortgage Loan, the Seller has not executed any written instrument that (i)
impaired, satisfied, canceled, subordinated or rescinded such Mortgage Loan,
(ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance
of doubt, the preceding sentence does not relate to any release of escrows by
the Seller or a servicer on its behalf.
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
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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 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
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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 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 is covered by a secured creditor impaired property
environmental insurance policy 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
I-5
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 harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, out-of-pocket 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 applicable 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
I-6
a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least twelve (12) months (or a
specified dollar amount which is reasonably estimated to cover no less than
twelve (12) months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the
time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy 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 federal flood insurance 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 (less physical depreciation).
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 at least 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).
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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 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;
I-8
(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 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
or related Mortgage Loan documents, 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
I-9
a provision entitling another party to hold and disburse such proceeds
would not be viewed as commercially unreasonable by a prudent commercial
mortgage lender), or (ii) to the payment of the outstanding principal
balance of the Mortgage Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related
Mortgaged Property is located at the time of the origination of such
Mortgage Loan; and
(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
I-10
interest, except that, in the case of an ARD Loan, such Mortgage Loan provides
that, during the period commencing on or about the related Anticipated
Repayment Date and continuing until such Mortgage Loan is paid in full, (a)
additional interest shall accrue and may be compounded monthly and shall be
payable only after the outstanding principal of such Mortgage Loan is paid in
full, and (b) a portion of the cash flow generated by such Mortgaged Property
will be applied each month to pay down the principal balance thereof in
addition to the principal portion of the related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or
before any court or 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
I-11
reasonable originator of similar mortgage loans in the jurisdiction where the
related Mortgaged Property is located customarily performs in the origination
of comparable mortgage loans, the related Mortgagor was in possession of all
material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated or such material licenses, permits and franchises have otherwise been
issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related 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 Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
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 Section 2(a)(16) of
the Investment Company Act. 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.
I-12
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any 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, Mortgage Note or loan agreement 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, transfers of worn-out or obsolete
furniture, furnishings and equipment 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 to the extent required by any cash management provisions of the
related Mortgage Loan documents) except on an arm's-length basis.
I-13
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been
made to the applicable governing authority for creation of separate tax lots,
which shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter 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
servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company pursuant to escrow instructions), 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 or submitted to a title company pursuant to escrow
instructions) 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).
I-14
41. Commencement of Amortization. Except as disclosed in the
Prospectus Supplement, 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 which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor or an entity controlled by a principal of such Mortgagor, for
damages, liabilities, expenses or claims sustained in connection with the
Mortgagor's fraud, material (or, alternatively, intentional)
misrepresentation, waste or misappropriation of any tenant security deposits
(in some cases, only after foreclosure or an action in respect thereof), rent
(in some cases, only after an event of default), insurance proceeds or
condemnation awards. 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 in
whole or in part by a Ground Lease and is therefore the subject of
representation 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 or another Mortgage Loan document 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.
I-15
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement 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;
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.
I-16
Annex A (to Schedule I)
Exceptions to the Representations and Warranties
Exceptions to Paragraph (13):
940951485 Fiesta Mart - Austin and 940951486 Fiesta Mart. In connection with
these mortgage loans, terrorism insurance was waived since the tenant is
responsible for damage to the property pursuant to the lease, however,
terrorism insurance is currently provided.
Exceptions to Paragraph (47):
940951485 Fiesta Mart - Austin and 940951486 Fiesta Mart - Dallas. In
connection with these mortgage loans, the borrower is to provide annual
operating statements and rent rolls.
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 Secured Creditor Impaired Property
Environmental Insurance Policies
(Representations 12 and 49)
940951540 Madison Xxxxxxx Apartments
940951160 Main Street Station
940951158 Xxx 89 Center
940951159 Rosehill Center
940951428 SONO at Xxxxxxxx & North Main
SCHEDULE II
Mortgage Loan Schedule
[Attached]
MLHT 2005-MCP1(PSA Exhibit) Loan Level
Property Level
Loan # Property Name Mortgage Property Address
Loan Type
Seller
9 The Mansions at Canyon Springs Country Club Apartments PNC Multifamily 24245 Wilderness Oak
12 The Villas of Sage Creek Apartments PNC Multifamily 00000 Xxxxx Xxxxx Xxxxxxxxx
13 Murrieta Town Center PNC Retail 40469-40485 Murrieta Hot Springs
Road & 39825-39875 Xxxx Xxxxxxxx
Drive
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort PNC Hospitality 00000 Xxxx Xxxx
31 River Drive Center 3 PNC Office 000 Xxxxx Xxxxx
33 Briarcliff III Office Building PNC Office 0000 Xxxxxxxx Xxxxx
35 Northridge Service Center - NSC 10 PNC Office 00000 Xxxxxxx Xxxxxx
36 Diamond Bar Village Center PNC Retail 23401-23499 Golden Springs and
000-000 Xxxxxxx Xxx Xxxxxxxxx
00 Xxxx Xxxxx Corporate Campus PNC Office One Industrial Way West
41 Fiesta Mart - Austin PNC Retail 3909 Interstate 35 North
45 Oceanside Retail Center PNC Retail 1702-1710 Oceanside Boulevard
46 Courtyards Apartments PNC Multifamily 0000 Xxxx 00xx Xxxxxx
53 Staybridge Suites - Bloomington PNC Hospitality 0000 Xxxxxxxx Xxxxxxxxx Xxxx
57 SONO at Xxxxxxxx & North Main Streets PNC Mixed Use 1 and 00 Xxxxxxxx Xxxxxx and 71
and 00 Xxxxx Xxxx Xxxxxx
67 Normandy Plaza PNC Retail 00000 Xxxxxxxx Xxxxxx
68 Northridge Service Center - NSC 17 PNC Office 00000 Xxxxxxx Xxxxxx
72 Park Forest Apartments PNC Multifamily 000 Xxxx Xxxxx Xxxxx
74 Fiesta Mart - Dallas PNC Retail 000 Xxxx Xxxxxxxxx Xxxxxxxxx
75 HunterLab II PNC Office 11491 Sunset Hills Road
82 Best Western Coral Inn & Suites PNC Hospitality 0000 Xxxxxxx Xxxxxxx
86 Trader Joes PNC Retail 0000 Xx Xx Xxxx Xxxxxx
87 Linden Professional Tower PNC Office 000 X. Xx. Xxxxxxx Xxxxxx
91 Wakarusa Market Place PNC Retail 0000-0000 Xxxxxxxx Xxxxx
95 Xxxx Plaza PNC Retail 0000 Xxxx Xxxx Xxxx
96 Lackland Self-Storage PNC Self Storage 000 Xxxxxxx Xxxx
00 Xxxxxxxxx Inn by Marriott - Savannah Airport PNC Hospitality 00 Xxxxxxx Xxxxx Xxxxx Xxxxx
98 Leawood Square PNC Retail 00000 Xxxxx Xxxx Xxxx
100 Rosehill Center PNC Retail 12715-12843 Xxxx 00xx Xxxxxx
000 Xxxxxxx Xxxxxxx Apartments PNC Multifamily 00 Xxxxxxxxxxxx Xxxx
106 Lions Gate Marketplace South PNC Retail 00000 Xxxxxxx Xxxxxx
108 Executive Hills Shops PNC Retail 0000 Xxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx Xxxxxxx XXX Retail 0000-0000 Xxxx Xxxxxx
111 Xxx 89 Center PNC Retail 0000-0000 Xxx Xxxxxx
Loan # Property Name City County State
9 The Mansions at Canyon Springs Country Club Apartments San Antonio Bexar TX
12 The Villas of Sage Creek Apartments Xxxxxx Xxxxxx TX
00 Xxxxxxxx Xxxx Xxxxxx Xxxxxxxx Xxxxxxxxx XX
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Beach Resort North Redington Beach Pinellas FL
00 Xxxxx Xxxxx Center 3 Elmwood Park Bergen NJ
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx Xxxxxx Xxxx Xxxx XX
35 Northridge Service Center - NSC 10 Chatsworth Los Angeles CA
36 Diamond Bar Village Center Diamond Bar Los Angeles CA
00 Xxxx Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx Monmouth NJ
41 Fiesta Mart - Austin Xxxxxx Xxxxxx TX
45 Oceanside Retail Center Oceanside San Diego CA
00 Xxxxxxxxxx Xxxxxxxxxx Xxxxx Xxxxx OK
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx Xxxxxxxxxxx Hennepin MN
57 SONO at Xxxxxxxx & North Main Streets Norwalk Fairfield CT
00 Xxxxxxxx Xxxxx Xxxxx Xxx Xxxxxxx XX
68 Northridge Service Center - NSC 17 Chatsworth Los Angeles CA
00 Xxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx and Xxxxxx Townships Centre PA
74 Fiesta Mart - Dallas Dallas Dallas TX
75 HunterLab II Reston Fairfax VA
82 Best Western Coral Inn & Suites Ft. Xxxxxx Xxx FL
86 Trader Joes Santa Xxxxxxx Santa Barbara CA
87 Linden Professional Tower Linden Union NJ
00 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX
00 Xxxx Xxxxx Xxxxxxx Xxxxxxxx XX
96 Lackland Self-Storage Fair Lawn Bergen NJ
97 Fairfield Inn by Marriott - Savannah Airport Savannah Chatham GA
00 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxx XX
000 Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxx XX
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx XX
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxx XX
000 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxx Xxxx Xxxxxxx XX
000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxxxx XX
000 Xxx 00 Xxxxxx Xxxxxxx Xxxxxxx Xxxxxxx XX
IO Monthly
Zip Cutoff Balance Original Debt
Loan # Property Name Code (6/1/2005) Balance Service
9 The Mansions at Xxxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx 00000 37,360,000.00 37,360,000.00 163,194.88
00 Xxx Xxxxxx xx Xxxx Xxxxx Xxxxxxxxxx 00000 33,900,000.00 33,900,000.00 151,518.09
13 Xxxxxxxx Xxxx Xxxxxx 00000 31,875,000.00 31,875,000.00 140,043.40
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Xxxxxx 00000 15,000,000.00 15,000,000.00 76,675.35
00 Xxxxx Xxxxx Xxxxxx 0 7407 13,425,985.16 13,440,000.00
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx 00000 12,300,000.00 12,300,000.00 54,663.82
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 00 00000 11,925,000.00 11,925,000.00 57,329.71
00 Xxxxxxx Xxx Xxxxxxx Xxxxxx 00000 11,850,000.00 11,850,000.00 53,064.41
00 Xxxx Xxxxx Xxxxxxxxx Xxxxxx 0000 11,500,000.00 11,500,000.00 53,246.07
00 Xxxxxx Xxxx - Xxxxxx 00000 10,920,582.19 10,944,000.00
45 Oceanside Retail Center 92054 10,600,000.00 10,600,000.00 46,750.42
00 Xxxxxxxxxx Xxxxxxxxxx 00000 10,500,000.00 10,500,000.00 45,244.79
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 00000 9,337,425.96 9,350,000.00
00 XXXX xx Xxxxxxxx & Xxxxx Xxxx Xxxxxxx 0000 8,306,630.37 8,331,000.00
00 Xxxxxxxx Xxxxx 00000 6,240,000.00 6,240,000.00 30,262.56
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 00 00000 6,075,000.00 6,075,000.00 29,205.70
00 Xxxx Xxxxxx Xxxxxxxxxx 00000 5,782,070.49 5,800,000.00
00 Xxxxxx Xxxx - Xxxxxx 00000 5,720,000.00 5,720,000.00 26,145.83
75 HunterLab II 20190 5,600,000.00 5,600,000.00 27,206.02
00 Xxxx Xxxxxxx Xxxxx Xxx & Xxxxxx 00000 4,594,434.49 4,600,000.00
86 Trader Joes 93108 4,400,000.00 4,400,000.00 20,372.41
87 Linden Professional Tower 7036 4,284,516.60 4,299,000.00
00 Xxxxxxxx Xxxxxx Xxxxx 00000 4,111,750.07 4,145,000.00
00 Xxxx Xxxxx 00000 3,676,737.31 3,680,000.00
96 Lackland Self-Storage 7410 3,560,114.38 3,600,000.00
00 Xxxxxxxxx Xxx xx Xxxxxxxx - Xxxxxxxx Xxxxxxx 00000 3,241,545.36 3,250,000.00
00 Xxxxxxx Xxxxxx 00000 3,193,717.12 3,200,000.00
000 Xxxxxxxx Xxxxxx 00000 2,954,188.33 2,960,000.00
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 00000 2,787,693.62 2,790,000.00
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 00000 2,542,249.27 2,550,000.00
108 Executive Hills Shops 66210 1,794,528.90 1,800,000.00
000 Xxxx Xxxxxx Xxxxxxx 00000 1,146,743.26 1,150,000.00
000 Xxx 00 Xxxxxx 00000 727,932.68 730,000.00
Monthly
IO Annual P&I Debt Annual P&I Interest
Loan # Property Name Debt Service Service Debt Service Rate (%)
9 The Mansions at Canyon Springs Country Club Apartments 1,958,338.56 204,456.00 2,453,472.00 5.1700
12 The Villas of Sage Creek Apartments 1,818,217.08 188,037.81 2,256,453.72 5.2900
13 Murrieta Town Center 1,680,520.83 175,029.09 2,100,349.08 5.2000
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 920,104.17 97,104.19 1,165,250.28 6.0500
00 Xxxxx Xxxxx Xxxxxx 0 72,807.37 873,688.44 5.0800
33 Briarcliff III Office Building 655,965.83 67,997.26 815,967.12 5.2600
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 10 687,956.56 69,137.20 829,646.40 5.6900
36 Diamond Bar Village Center 636,772.92 65,803.60 789,643.20 5.3000
38 West Ridge Corporate Campus 65,151.50 781,818.00 5.4800
41 Fiesta Mart - Austin 60,636.69 727,640.28 5.2800
45 Oceanside Retail Center 561,005.00 58,336.79 700,041.48 5.2200
46 Courtyards Apartments 542,937.50 57,009.73 684,116.76 5.1000
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 58,708.50 704,502.00 5.7300
00 XXXX xx Xxxxxxxx & Xxxxx Xxxx Xxxxxxx 47,826.52 573,918.24 5.6000
00 Xxxxxxxx Xxxxx 363,150.72 36,375.32 436,503.84 5.7400
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 17 350,468.44 35,220.84 422,650.08 5.6900
72 Park Forest Apartments 34,790.59 417,487.08 5.2600
74 Fiesta Mart - Dallas 313,749.94 32,155.28 385,863.36 5.4100
75 HunterLab II 326,472.22 32,680.08 392,160.96 5.7500
82 Best Western Coral Inn & Suites 30,401.68 364,820.16 6.2700
86 Trader Joes 244,468.89 24,927.53 299,130.36 5.4800
87 Linden Professional Tower 35,584.33 427,011.96 5.7000
00 Xxxxxxxx Xxxxxx Xxxxx 27,471.55 329,658.60 6.3000
00 Xxxx Xxxxx 21,452.11 257,425.32 5.7400
96 Lackland Self-Storage 36,031.39 432,376.68 5.2900
97 Fairfield Inn by Marriott - Savannah Airport 21,479.45 257,753.40 6.2700
00 Xxxxxxx Xxxxxx 18,532.28 222,387.36 5.6800
000 Xxxxxxxx Xxxxxx 17,142.36 205,708.32 5.6800
000 Xxxxxxx Xxxxxxx Apartments 16,745.40 200,944.80 6.0100
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 14,366.83 172,401.96 5.4300
108 Executive Hills Shops 10,141.29 121,695.48 5.4300
000 Xxxx Xxxxxx Xxxxxxx 7,255.59 87,067.08 5.7800
111 Xxx 89 Center 4,605.72 55,268.64 5.7800
Primary Master Trustee &
Servicing Servicing Paying Broker Admin.
Loan # Property Name Fee Rate Fee Rate Agent Fee Strip Rate Fee
9 The Mansions at Canyon Springs Country Club Apartments 0.05000 0.01000 0.00130 0.06130
12 The Villas of Sage Creek Apartments 0.03000 0.01000 0.00130 0.04130
13 Murrieta Town Center 0.03000 0.01000 0.00130 0.04130
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 0.03000 0.01000 0.00130 0.04130
00 Xxxxx Xxxxx Xxxxxx 0 0.03000 0.01000 0.00130 0.04130
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx 0.00000 0.00000 0.00130 0.04130
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 10 0.06000 0.01000 0.00130 0.07130
36 Diamond Bar Village Center 0.03000 0.01000 0.00130 0.04130
00 Xxxx Xxxxx Xxxxxxxxx Xxxxxx 0.00000 0.01000 0.00130 0.04130
00 Xxxxxx Xxxx - Xxxxxx 0.00000 0.01000 0.00130 0.04130
45 Oceanside Retail Center 0.03000 0.01000 0.00130 0.04130
00 Xxxxxxxxxx Xxxxxxxxxx 0.00000 0.01000 0.00130 0.04130
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 0.00000 0.01000 0.00130 0.09130
00 XXXX xx Xxxxxxxx & Xxxxx Xxxx Xxxxxxx 0.03000 0.01000 0.00130 0.04130
00 Xxxxxxxx Xxxxx 0.00000 0.01000 0.00130 0.04130
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 17 0.06000 0.01000 0.00130 0.07130
00 Xxxx Xxxxxx Xxxxxxxxxx 0.00000 0.01000 0.00130 0.04130
00 Xxxxxx Xxxx - Xxxxxx 0.00000 0.01000 0.00130 0.04130
75 HunterLab II 0.08000 0.01000 0.00130 0.09130
82 Best Western Coral Inn & Suites 0.03000 0.01000 0.00130 0.04130
86 Trader Joes 0.06000 0.01000 0.00130 0.07130
87 Linden Professional Tower 0.03000 0.01000 0.00130 0.04130
00 Xxxxxxxx Xxxxxx Xxxxx 0.10000 0.01000 0.00130 0.11130
00 Xxxx Xxxxx 0.00000 0.01000 0.00130 0.09130
96 Lackland Self-Storage 0.03000 0.01000 0.00130 0.04130
97 Fairfield Inn by Marriott - Savannah Airport 0.03000 0.01000 0.00130 0.04130
00 Xxxxxxx Xxxxxx 0.00000 0.01000 0.00130 0.09130
000 Xxxxxxxx Xxxxxx 0.00000 0.01000 0.00130 0.09130
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.00000 0.01000 0.00130 0.04130
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 0.08000 0.01000 0.00130 0.09130
108 Executive Hills Shops 0.08000 0.01000 0.00130 0.09130
000 Xxxx Xxxxxx Xxxxxxx 0.08000 0.01000 0.00130 0.09130
000 Xxx 00 Xxxxxx 0.00000 0.01000 0.00130 0.09130
Net Mortgage Accrual Remaining Maturity/
Loan # Property Name Interest Rate Type Term Term ARD Date
9 The Mansions at Canyon Springs Country Club Apartments 5.1087 Actual/360 84 84 6/1/2012
12 The Villas of Sage Creek Apartments 5.2487 Actual/360 120 118 4/1/2015
13 Murrieta Town Center 5.1587 Actual/360 121 121 7/1/2015
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 6.0087 Actual/360 120 119 5/1/2015
00 Xxxxx Xxxxx Xxxxxx 0 5.0387 Actual/360 120 119 5/1/2015
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx 0.0000 Actual/360 120 120 6/1/2015
35 Northridge Service Center - NSC 10 5.6187 Actual/360 120 120 6/1/2015
36 Diamond Bar Village Center 5.2587 Actual/360 120 118 4/1/2015
38 West Ridge Corporate Campus 5.4387 Actual/360 121 121 7/1/2015
41 Fiesta Mart - Austin 5.2387 Actual/360 120 118 4/1/2015
45 Oceanside Retail Center 5.1787 Actual/360 120 117 3/1/2015
46 Courtyards Apartments 5.0587 Actual/360 120 118 4/1/2015
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 0.0000 Actual/360 120 119 5/1/2015
57 SONO at Xxxxxxxx & North Main Streets 5.5587 Actual/360 120 117 3/1/2015
00 Xxxxxxxx Xxxxx 5.6987 Actual/360 121 121 7/1/2015
68 Northridge Service Center - NSC 17 5.6187 Actual/360 120 120 6/1/2015
72 Park Forest Apartments 5.2187 Actual/360 120 118 4/1/2015
00 Xxxxxx Xxxx - Xxxxxx 0.0000 Actual/360 120 118 4/1/2015
75 HunterLab II 5.6587 Actual/360 120 118 4/1/2015
82 Best Western Coral Inn & Suites 6.2287 Actual/360 120 119 5/1/2015
86 Trader Joes 5.4087 Actual/360 120 119 5/1/2015
87 Linden Professional Tower 5.6587 Actual/360 180 179 5/1/2020
00 Xxxxxxxx Xxxxxx Xxxxx 0.0000 Actual/360 120 114 12/1/2014
00 Xxxx Xxxxx 5.6487 Actual/360 120 119 5/1/2015
96 Lackland Self-Storage 5.2487 Actual/360 132 130 4/1/2016
97 Fairfield Inn by Marriott - Savannah Airport 6.2287 Actual/360 120 118 4/1/2015
00 Xxxxxxx Xxxxxx 5.5887 Actual/360 120 118 4/1/2015
000 Xxxxxxxx Xxxxxx 5.5887 Actual/360 120 118 4/1/2015
000 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0.0000 Actual/360 156 155 5/1/2018
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 5.3387 Actual/360 120 117 3/1/2015
108 Executive Hills Shops 5.3387 Actual/360 120 117 3/1/2015
000 Xxxx Xxxxxx Xxxxxxx 5.6887 Actual/360 120 118 4/1/2015
111 Xxx 89 Center 5.6887 Actual/360 120 118 4/1/2015
Amort Remaining ARD ARD Step
Loan # Property Name Term Amort Term Title Type (Y/N) Up (%)
9 The Mansions at Canyon Springs Country Club Apartments 360 360 Fee No
12 The Villas of Sage Creek Apartments 360 360 Fee No
13 Murrieta Town Center 360 360 Fee No
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 300 300 Fee No
00 Xxxxx Xxxxx Center 3 360 359 Fee No
33 Briarcliff III Office Building 360 360 Fee No
35 Northridge Service Center - NSC 10 360 360 Fee No
36 Diamond Bar Village Center 360 360 Fee No
38 West Ridge Corporate Campus 360 360 Fee No
41 Fiesta Mart - Austin 360 358 Fee No
45 Oceanside Retail Center 360 360 Fee No
46 Courtyards Apartments 360 360 Fee Xx
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 000 299 Fee No
57 SONO at Xxxxxxxx & Xxxxx Xxxx Xxxxxxx 000 000 Fee No
67 Normandy Plaza 360 360 Fee No
68 Northridge Service Center - NSC 17 360 360 Leasehold Xx
00 Xxxx Xxxxxx Xxxxxxxxxx 000 000 Xxx Xx
74 Fiesta Mart - Dallas 360 360 Fee No
75 HunterLab II 360 360 Fee No
82 Best Western Coral Inn & Suites 300 299 Fee No
86 Trader Joes 360 360 Fee No
87 Linden Professional Tower 180 179 Fee Xx
00 Xxxxxxxx Xxxxxx Xxxxx 000 000 Fee Xx
00 Xxxx Xxxxx 000 000 Xxx Xx
96 Lackland Self-Storage 132 130 Fee No
97 Fairfield Inn by Marriott - Savannah Airport 300 298 Fee No
00 Xxxxxxx Xxxxxx 360 358 Fee No
000 Xxxxxxxx Xxxxxx 360 358 Fee No
103 Madison Xxxxxxx Apartments 360 359 Fee No
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 000 357 Fee No
108 Executive Hills Shops 360 357 Fee No
000 Xxxx Xxxxxx Station 300 298 Fee No
111 Xxx 89 Center 300 298 Fee No
Environmental Environmental Cross- Cross-
Loan # Property Name Report Type Insurance (Y/N) Defaulted Collateralized
9 The Mansions at Canyon Springs Country Club Apartments Phase I No
12 The Villas of Sage Creek Apartments Phase I No
13 Murrieta Town Center Phase I No
25 Hilton Tampa Bay/North Redington Beach Resort Phase I No
00 Xxxxx Xxxxx Xxxxxx 0 Xxxxx X No
33 Briarcliff III Office Building Phase I No
35 Northridge Service Center - XXX 00 Xxxxx X No Yes Yes
36 Diamond Bar Village Center Phase I No
38 West Ridge Corporate Campus Phase I No
41 Fiesta Mart - Austin Phase I No
45 Oceanside Retail Xxxxxx Xxxxx X Xx
00 Xxxxxxxxxx Xxxxxxxxxx Xxxxx I Xx
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx Xxxxx I No
57 SONO at Xxxxxxxx & North Main Streets Phase I Yes
00 Xxxxxxxx Xxxxx Xxxxx X No
68 Northridge Service Center - XXX 00 Xxxxx X No Yes Yes
00 Xxxx Xxxxxx Xxxxxxxxxx Xxxxx I No
74 Fiesta Mart - Dallas Phase I No
75 HunterLab II Phase I No
82 Best Western Coral Inn & Suites Phase I No
86 Trader Joes Phase I No
87 Linden Professional Tower Phase I Xx
00 Xxxxxxxx Xxxxxx Xxxxx Xxxxx I No
95 Xxxx Plaza Phase I No
96 Lackland Self-Storage Phase I No
97 Fairfield Inn by Marriott - Savannah Airport Phase I No
00 Xxxxxxx Xxxxxx Phase I No
000 Xxxxxxxx Xxxxxx Yes Yes Yes
000 Xxxxxxx Xxxxxxx Apartments Yes
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx Phase I No Yes Yes
108 Executive Hills Shops Phase I No Yes Yes
000 Xxxx Xxxxxx Xxxxxxx Yes Yes Yes
111 Xxx 89 Center Yes
Defeasance Letter Lockbox Holdback Upfront
Loan # Property Name Allowed of Credit In-place Amt Eng. Reserve
9 The Mansions at Canyon Springs Country Club Apartments Yes No Yes No 400,000.00
12 The Villas of Sage Creek Apartments No No No No 400,000.00
13 Murrieta Town Center Yes No No No
25 Hilton Tampa Bay/North Redington Beach Resort Xx Xx Xx Xx
00 Xxxxx Xxxxx Center 3 Yes No Yes Yes
33 Briarcliff III Office Building Yes No No No
35 Northridge Service Center - NSC 10 No No Yes No
36 Diamond Bar Village Center Yes No No No
38 West Ridge Corporate Campus No Yes No No 15,841.00
41 Fiesta Mart - Austin Yes No Yes No
45 Oceanside Retail Center Yes No Yes No
46 Courtyards Apartments No No No No
53 Staybridge Suites - Bloomington Yes No No No
57 SONO at Xxxxxxxx & North Main Streets Yes Yes No No 32,938.00
00 Xxxxxxxx Xxxxx Yes No No No
68 Northridge Service Center - NSC 17 No No Yes No
72 Park Forest Apartments No No No No
74 Fiesta Mart - Dallas Yes No Yes No
75 HunterLab II Yes No No No 111,250.00
82 Best Western Coral Inn & Suites Yes No No No
86 Trader Joes No No Yes No 13,844.00
87 Linden Professional Tower Yes No No No 131,875.00
91 Wakarusa Market Place Yes No No No
95 Xxxx Plaza No No No No 60,831.00
96 Lackland Self-Storage Yes No No No
97 Fairfield Inn by Marriott - Savannah Airport Yes No No No
00 Xxxxxxx Xxxxxx Yes No No No 13,594.00
000 Xxxxxxxx Xxxxxx Yes No No No
103 Madison Xxxxxxx Apartments No No No No
106 Lions Gate Marketplace South Yes No No No
108 Executive Hills Shops Yes No No No 60,562.50
000 Xxxx Xxxxxx Station Yes No No No
111 Xxx 89 Center Yes No No No
Upfront Upfront Upfront Upfront
CapEx Envir. TI/LC RE Tax
Loan # Property Name Reserves Reserve Reserve Reserve
9 The Mansions at Canyon Springs Country Club Apartments
12 The Villas of Sage Creek Apartments
13 Murrieta Town Center
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 250,000.00
00 Xxxxx Xxxxx Center 3
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx
00 Xxxxxxxxxx Service Center - NSC 10
36 Diamond Bar Village Center 26,886.00
00 Xxxx Xxxxx Corporate Campus
41 Fiesta Mart - Austin
45 Oceanside Retail Center 29,280.00 25,000.00
46 Courtyards Apartments 250,000.00
53 Staybridge Suites - Bloomington
57 SONO at Xxxxxxxx & North Main Streets 500.00
00 Xxxxxxxx Xxxxx
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 17
72 Park Forest Apartments 750.00
74 Fiesta Mart - Dallas
75 HunterLab II
82 Best Western Coral Inn & Suites
86 Trader Joes
87 Linden Professional Tower
91 Wakarusa Market Xxxxx
00 Xxxx Xxxxx
96 Lackland Self-Storage
97 Fairfield Inn by Marriott - Savannah Airport 205,000.00
00 Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxxx Apartments
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 90,450.00
000 Xxxxxxxxx Xxxxx Shops
000 Xxxx Xxxxxx Xxxxxxx
111 Xxx 89 Center
Upfront Upfront
Insurance Other
Loan # Property Name Reserve Reserve Upfront Other Description
9 The Mansions at Canyon Springs Country Club Apartments
12 The Villas of Sage Creek Apartments 1,000,000.00 Operating Income Reserve
00 Xxxxxxxx Xxxx Xxxxxx
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Beach Resort 224,000.00 Doubletree PIP reserve
00 Xxxxx Xxxxx Center 3
00 Xxxxxxxxxx XXX Xxxxxx Xxxxxxxx
00 Xxxxxxxxxx Service Center - NSC 10
36 Diamond Bar Village Center
38 West Ridge Corporate Campus
41 Fiesta Mart - Austin
45 Oceanside Retail Xxxxxx
00 Xxxxxxxxxx Xxxxxxxxxx
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx
00 SONO at Xxxxxxxx & North Main Streets
67 Normandy Plaza 16,250.00 Final Certificates of Occupancy
for Potbelly Sandwich Works,
Omaha Steaks, Bombay, Verizon
Wireless, Charter One Bank, and
Caribou Coffee
68 Northridge Service Center - NSC 17
72 Park Forest Apartments
74 Fiesta Mart - Dallas
75 HunterLab II
82 Best Western Coral Inn & Suites 16,606.00
86 Trader Joes
87 Linden Professional Tower 468,000.00 Elevator Permit Xxxxxx
00 Xxxxxxxx Xxxxxx Xxxxx
95 Xxxx Plaza
96 Lackland Self-Storage
97 Fairfield Inn by Marriott - Savannah Airport 8,982.64
00 Xxxxxxx Xxxxxx
000 Xxxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxxx Apartments
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxx Shops
000 Xxxx Xxxxxx Xxxxxxx
111 Xxx 89 Center
Monthly Monthly Monthly
Capex Envir. TI/LC Monthly RE
Loan # Property Name Reserve Reserve Reserve Tax Reserve
9 The Mansions at Canyon Springs Country Club Apartments 7,500.00 57,434.18
12 The Villas of Sage Creek Apartments 9,375.00 52,409.85
13 Murrieta Town Center 4,176.00 4,166.67 34,375.00
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 13,126.67
00 Xxxxx Xxxxx Xxxxxx 0 1,433.33 6,250.00 24,673.65
33 Briarcliff III Office Building 1,525.25 3,750.00 19,115.42
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 10 2,812.50 8,333.00 16,273.75
36 Diamond Bar Village Center 4,166.67 16,487.50
00 Xxxx Xxxxx Corporate Campus 4,794.58 10,000.00 16,751.58
41 Fiesta Mart - Austin
45 Oceanside Retail Center 12,383.33
46 Courtyards Apartments 5,666.67 9,607.92
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 10,486.17 19,805.91
00 XXXX xx Xxxxxxxx & Xxxxx Xxxx Xxxxxxx 650.00 2,083.33 7,174.52
00 Xxxxxxxx Xxxxx 196.16 2,083.33 11,166.67
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 17 1,313.08 8,333.33 9,233.25
72 Park Forest Apartments 6,825.00 7,560.40
74 Fiesta Mart - Dallas
75 HunterLab II 1,141.33 7,733.33
82 Best Western Coral Inn & Suites 5,348.88 5,527.51
86 Trader Joes 230.92 6,111.77
87 Linden Professional Tower 653.92 1,250.00 6,466.67
00 Xxxxxxxx Xxxxxx Xxxxx 443.00 1,250.00 8,450.92
00 Xxxx Xxxxx 375.42 1,000.00 6,040.26
96 Lackland Self-Storage 960.17 11,148.00
97 Fairfield Inn by Marriott - Savannah Airport 5,783.55 6,895.83
00 Xxxxxxx Xxxxxx 1,087.33 2,500.00 13,620.98
000 Xxxxxxxx Xxxxxx 700.50 1,250.00 8,921.34
000 Xxxxxxx Xxxxxxx Apartments 2,500.00 5,265.83
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 181.25 833.34 9,451.67
108 Executive Hills Shops 181.25 833.34 4,860.64
000 Xxxx Xxxxxx Xxxxxxx 841.75 1,250.00 2,558.33
111 Xxx 89 Center 349.58 666.67 1,723.49
Monthly Monthly Other
Insurance Other Month Total
Loan # Property Name Reserve Reserve Description SF/Units
9 The Mansions at Canyon Springs Country Club Apartments 11,566.67 360
12 The Villas of Sage Creek Apartments 9,515.33 450
13 Murrieta Town Center 379,510
00 Xxxxxx Xxxxx Xxx/Xxxxx Xxxxxxxxx Xxxxx Resort 16,350.00 125
00 Xxxxx Xxxxx Center 3 1,174.78 93,464
33 Briarcliff III Office Building 1,771.58 90,513
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 10 2,182.08 89,971
36 Diamond Bar Village Center 3,006.92 59,746
38 West Ridge Corporate Campus 1,504.00 113,715
41 Fiesta Mart - Austin 132,125
45 Oceanside Retail Center 1,249.92 65,065
46 Courtyards Apartments 3,364.75 000
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx 3,328.50 127
57 SONO at Xxxxxxxx & North Main Streets 1,391.58 46,282
67 Normandy Plaza 981.67 15,726
00 Xxxxxxxxxx Xxxxxxx Xxxxxx - XXX 17 1,418.17 78,783
72 Park Forest Apartments 4,842.42 273
74 Fiesta Mart - Dallas 64,541
75 HunterLab II 997.83 67,867
82 Best Western Coral Inn & Suites 100
86 Trader Joes 450.33 18,472
87 Linden Professional Tower 1,437.65 39,237
00 Xxxxxxxx Xxxxxx Xxxxx 667.25 35,442
00 Xxxx Xxxxx 576.67 27,424
96 Lackland Self-Storage 864
97 Fairfield Inn by Marriott - Savannah Airport 80
00 Xxxxxxx Xxxxxx 677.92 38,865
000 Xxxxxxxx Xxxxxx 515.83 30,264
000 Xxxxxxx Xxxxxxx Apartments 2,763.76 120
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx 502.00 23,610
108 Executive Hills Shops 448.83 14,501
000 Xxxx Xxxxxx Station 367.92 22,902
111 Xxx 89 Center 172.17 9,534
Unit of Grace Loan
Loan # Property Name Measure Period Group
9 The Mansions at Canyon Springs Country Club Apartments Units 5 1
12 The Villas of Sage Creek Apartments Xxxxx 0 0
00 Xxxxxxxx Xxxx Center SF 5 1
25 Hilton Tampa Bay/North Redington Beach Resort Rooms 5 1
31 River Drive Center 3 SF 5 1
33 Briarcliff III Office Building SF 5 1
35 Northridge Service Center - NSC 10 SF 5 1
36 Diamond Bar Village Center SF 5 1
38 West Ridge Corporate Campus SF 5 1
41 Fiesta Mart - Austin SF 5 1
45 Oceanside Retail Center SF 5 1
46 Courtyards Apartments Xxxxx 0 0
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxxx Xxxxx 0 1
57 SONO at Xxxxxxxx & North Main Streets SF 5 1
67 Normandy Plaza SF 5 1
68 Northridge Service Center - NSC 17 SF 5 1
72 Park Forest Apartments Units 5 2
74 Fiesta Mart - Dallas SF 5 1
75 HunterLab II SF 5 1
82 Best Western Coral Inn & Suites Rooms 5 1
86 Trader Joes SF 5 1
87 Linden Professional Tower SF 5 1
91 Wakarusa Market Xxxxx XX 0 0
00 Xxxx Xxxxx SF 5 1
96 Lackland Self-Storage Xxxxx 0 0
00 Xxxxxxxxx Xxx by Marriott - Savannah Airport Rooms 5 1
00 Xxxxxxx Xxxxxx SF 5 1
100 Rosehill Center SF 5 1
103 Madison Xxxxxxx Apartments Xxxxx 0 0
000 Xxxxx Xxxx Xxxxxxxxxxx Xxxxx SF 5 1
108 Executive Hills Shops SF 5 1
000 Xxxx Xxxxxx Xxxxxxx SF 5 1
111 Xxx 89 Center SF 5 1
