MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of August 15, 2001
(the "Agreement"), is entered into between German American Capital Corporation
(the "Seller") and First Union Commercial Mortgage Securities, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
Cut-Off Date, among the Purchaser as depositor, First Union National Bank, as
master servicer (in such capacity, the "Master Servicer"), Lennar Partners,
Inc., as special servicer (in such capacity, the "Special Servicer"), LaSalle
Bank National Association, as paying agent (in such capacity, the "Paying
Agent"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined herein have the respective meanings set
forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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 $120,280,114 (the "GACC 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 GACC 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
$818,834,218 (subject to a variance of plus or minus 5%). The purchase and sale
of the Mortgage Loans shall take place on August 21, 2001 or such other date as
shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Purchase Price") for the Mortgage Loans shall be
equal to (A) (i) 103.57% of the GACC Mortgage Loan Balance as of the Cut-Off
Date, plus (ii) $519,377, which amount represents the amount of interest accrued
on the GACC 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, less (B) the principal amounts or percentage interests of the Certificates
set forth on Exhibit B attached hereto (collectively, the "Retained
Certificates").
The Purchase Price shall be paid to the Seller or its designee by
wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Price, the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse (except as set forth in this
Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has, on behalf
of the Purchaser, delivered to the Trustee, the documents and instruments
specified below with respect to each Mortgage Loan (each a "Mortgage File"). All
Mortgage Files so delivered will be held by the Trustee in escrow at all times
prior to the Closing Date. Each Mortgage File shall contain the following
documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (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 Minnesota, N.A., as
trustee for the registered holders of First Union National Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2001-C3 or in blank;
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form, of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is a document
separate from the Mortgage) and (c) any other recorded document relating
to the Mortgage Loan otherwise included in the Mortgage File, in favor of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered holders of
First Union National Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2001-C3, 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 Minnesota, N.A., as trustee for
the registered holders of First Union National Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2001-C3, or
in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of Xxxxx Fargo Bank
Minnesota, N.A., as trustee for the registered holders of First Union
National Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2001-C3, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, any Credit Lease and
any Lease Enhancement Policy, RVI Policy, Guaranty or ground lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor; and
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan.
(d) The Seller shall take all actions necessary or desirable (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall promptly
be delivered or caused to be delivered by the Seller to the Master Servicer or
at the direction of the Master Servicer to the appropriate sub-servicer,
together with any related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing and
in good standing under the laws of the State of Maryland and possesses all
requisite authority, power, licenses, permits and franchises to carry on
its business as currently conducted by it and to execute, deliver and
comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may be
applied in the context of the insolvency of a corporation, and by general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's 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 material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Price. The consideration received by the Seller upon the
sale of the Mortgage Loans to the Purchaser will constitute reasonably
equivalent value at least equal to the fair market value of 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, Schedule II and Schedule III hereto for the benefit of
the Purchaser and the Trustee for the benefit of the Certificateholders as of
the Closing Date, with respect to (and solely with respect to) each Mortgage
Loan.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement relating to a Mortgage Loan, then the Seller shall not later than 90
days from receipt of such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from
any party to the Pooling and Servicing Agreement discovering such Document
Defect or Breach provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the related Mortgage Loan or the interest of the Certificateholders
therein, cure such Document Defect or Breach, as the case may be, in all
material respects, which shall include payment of losses and any Additional
Trust Fund Expenses associated therewith or, if such Document Defect or Breach
(other than omissions solely due to a document not having been returned by the
related recording office) cannot be cured within such 90-day period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period or (ii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan not later than the end of such
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith; provided, however, that
unless the breach would cause the Mortgage Loan not to be a Qualified Mortgage,
and if such Document Defect or Breach is capable of being cured but not within
such 90-day period and the Seller has commenced and is diligently proceeding
with the cure of such Document Defect or Breach within such 90-day period, such
Seller shall have an additional 90 days to complete such cure (or, failing such
cure, to repurchase or substitute the related Mortgage Loan); and provided,
further, that with respect to such additional 90-day period the Seller shall
have delivered an officer's certificate to the Trustee setting forth the reason
such Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided;
further, that no Document Defect (other than with respect to a Mortgage Note,
Mortgage, title insurance policy, Ground Lease or any letter of credit) shall be
considered to materially and adversely affect the interests of the
Certificateholders or the value of the related Mortgage Loan unless the document
with respect to which the Document Defect exists is required in connection with
an imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any borrower or third party with
respect to the Mortgage Loan, establishing the validity or priority of any lien
or any collateral securing the Mortgage Loan or for any immediate servicing
obligations. A Document Defect or Breach as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each a "Crossed Loan") that materially and adversely affects the value of such
other Mortgage Loans, and is not cured as provided for above, shall require the
repurchase or substitution of all such cross-collateralized and cross-defaulted
Mortgage Loans which are materially and adversely affected by such Document
Defect or Breach; provided, that if any Crossed Loan is not so repurchased or
substituted, then such Crossed Loan shall be released from its
cross-collateralization and cross-default provision so long as such Crossed Loan
is held in the Trust Fund; provided, further, that the borrower under such
Mortgage Loan is an intended third party beneficiary of this provision, which
shall not be modified without such borrower's consent. For a period of two years
from the Closing Date, so long as there remains any Mortgage File relating to a
Mortgage Loan as to which there is any uncured Document Defect or Breach, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; 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 immediately preceding sentence), the Seller
shall in all cases on or prior to the second anniversary of the Closing Date
either cause such Document Defect or Breach to be cured or repurchase or
substitute for the affected Mortgage Loan. Notwithstanding the foregoing, the
delivery of a commitment to issue a policy of lender's title insurance as
described in clause 12 of Schedule I hereof in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, and (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.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's Articles of Incorporation or Bylaws, (B) any term or provision of
any material agreement, contract, instrument or indenture, to which the
Purchaser is a party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx,
Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) 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 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 shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) A letter from the independent accounting firm of KPMG LLP in
form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) 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 and the Underwriters may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that (i) such officer has
carefully examined the Prospectus and nothing has come to his attention that
would lead him to believe that the Prospectus, as of the date of the Prospectus
Supplement or as of the Closing Date, included or includes any untrue statement
of a material fact relating to the Mortgage Loans or omitted or omits to state
therein a material fact necessary in order to make the statements therein
relating to the Mortgage Loans, in light of the circumstances under which they
were made, not misleading, and (ii) such officer has examined the Memorandum and
nothing has come to his attention that would lead him to believe that the
Memorandum, as of the date thereof or as of the Closing Date, included or
includes any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omits 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;
(e) The articles of association and by-laws of the Seller, and a
certificate of good standing of the Seller issued by the State of Maryland not
earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933 Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"), against
any and all losses, expenses (including the reasonable fees and expenses of
legal counsel), claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) the Prospectus Supplement,
the Memorandum, the Diskette or, insofar as they are required to be filed as
part of the Registration Statement pursuant to the No-Action Letters, any
Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing or (B) any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates
(the items in (A) and (B) being defined as the "Disclosure Material"), or (ii)
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; but only if and to the extent that (I) any such untrue
statement or alleged untrue statement or omission or alleged omission arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement including without limitation Annex
A thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact is with
respect to, or arises out of or is based upon an untrue statement or omission of
a material fact with respect to, the information regarding the Mortgage Loans,
the related Mortgagors, the related Mortgaged Properties and/or the Seller set
forth (Y) in the Prospectus Supplement and the Memorandum under the headings:
"SUMMARY OF PROSPECTUS SUPPLEMENT--THE PARTIES--The Mortgage Loan Sellers" and
"--The Mortgage Loan Originators", "SUMMARY OF PROSPECTUS SUPPLEMENT--THE
MORTGAGE LOANS", "RISK FACTORS-Certain Risk Factors Associated With the Mortgage
Loans" and "DESCRIPTION OF THE MORTGAGE POOL" and (Z) on Annex A to the
Prospectus Supplement and, to the extent consistent therewith, on the Diskette,
(III) any such untrue statement or alleged untrue statement or omission or
alleged omission arises out of or is based upon a breach of the representations
and warranties of the Seller set forth in or made pursuant to Section 3 or (IV)
any such untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon any other information concerning the
characteristics of the Mortgage Loans, the related obligors on the Mortgage
Loans or the related Mortgaged Properties furnished to the Purchaser or the
Underwriters by the Seller; provided that the indemnification provided by this
Section 7 shall not apply to the extent that such untrue statement or omission
of a material fact was made as a result of an error in the manipulation of, or
in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties set forth in the Data File or Annex A to the Prospectus
Supplement to the extent such information was not materially incorrect in the
Data File or such Annex A, as applicable, including without limitation the
aggregation of such information with comparable information relating to the
Other Mortgage Loans. The information described in clauses (I) through (IV)
above is collectively referred to as the "Seller Information". The Seller shall
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Seller may otherwise
have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-53266 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated July 27,
2001, as supplemented by the prospectus supplement dated August 15, 2001 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Memorandum" shall mean the private placement memorandum dated August
7, 2001 relating to the Non-Registered Certificates, including all exhibits
thereto; "Registered Certificates" shall mean the Class A-1, Class A-2, Class
A-3, Class B, Class C, Class D and Class E Certificates; "Non-Registered
Certificates" shall mean the Certificates other than the Registered
Certificates; "Computational Materials" shall have the meaning assigned thereto
in the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Xxxxxx
letters, the "No-Action Letters"); "Diskette" shall mean the diskette or compact
disc attached to each of the Prospectus and the Memorandum; and "Data File"
shall mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letter dated August 7, 2001 and rendered
by KPMG LLP (a "hard copy" of which Data File was initialed on behalf of the
Seller and the Purchaser).
(c) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have otherwise than under this
Section 7. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the GACC Mortgage Loan Balance
represents as of the Cut-Off Date Pool Balance): (i) the costs and expenses of
printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters; provided, however, Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the expense of recording
any assignment of Mortgage or assignment of Assignment of Leases as contemplated
by Section 2 hereof with respect to such Seller's Mortgage Loans. All other
costs and expenses in connection with the transactions contemplated hereunder
shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Certificate Account, the
Distribution Account or, if established, the REO Account (each as defined in the
Pooling and Servicing Agreement) whether in the form of cash, instruments,
securities or other property; (iii) the assignment to the Trustee of the
interest of the Purchaser as contemplated by Section 1 hereof shall be deemed to
be an assignment of any security interest created hereunder; (iv) the possession
by the Trustee or any of its agents, including, without limitation, the
Custodian, of the Mortgage Notes, and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
possession by the secured party for purposes of perfecting the security interest
pursuant to Section 9-313 of the Uniform Commercial Code of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 16. 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 17. 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) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all respects
to the same extent as if they had been signatories hereof.
SECTION 18. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 19. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
SECTION 20. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge," such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
Address for Notices:
Deutsche Banc Xxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PURCHASER
FIRST UNION COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed in connection with such Mortgage Loan are legal,
valid and binding obligations of the related Mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with their
terms, except (i) that certain provisions contained in such Mortgage Loan
documents are or may be unenforceable in whole or in part under applicable
state or federal laws, but neither the application of any such laws to any
such provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums or
yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Except as set forth below, each related Mortgage is a valid and
enforceable first lien on the related Mortgaged Property subject only to
the exceptions set forth in paragraph (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (d)
other matters to which like properties are commonly subject, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, none of which, individually or in
the aggregate, materially and adversely interferes with the current use of
the Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the
value of the Mortgaged Property. Except with respect to
cross-collateralized and cross-defaulted Mortgage Loans, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary at the time of the origination
of the Mortgage Loan to perfect a valid security interest in all items of
personal property reasonably necessary to operate the Mortgaged Property
owned by a Mortgagor and located on the related Mortgaged Property (other
than any personal property subject to a purchase money security interest
or a sale and leaseback financing arrangement permitted under the terms of
such Mortgage Loan or any other personal property leases applicable to
such personal property), to the extent perfection may be effected pursuant
to applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivorship, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of the foregoing, no representation
is made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the Seller,
each related Mortgaged Property was free and clear of any material damage
(other than deferred maintenance for which escrows were established at
origination) that would affect materially and adversely the value of such
Mortgaged Property as security for the Mortgage Loan and to the Seller's
actual knowledge as of the Cut-Off Date there was no proceeding pending
for the total or partial condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the original
principal amount of such Mortgage Loan after all advances of principal (as
set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable without consent of the insurer and will inure to
the benefit of the Trustee as mortgagee of record; is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally-recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; such policy contains
no material exclusions for, or affirmatively insures (except for any
Mortgaged Property located in a jurisdiction where such insurance is not
available) (a) access to public road or (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required under
each related Mortgage, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, is in an amount (subject to a customary deductible) at
least equal to the lesser of (i) the replacement cost of improvements
located on such Mortgaged Property, or (ii) the initial principal balance
of the Mortgage Loan, and in any event, the amount necessary to prevent
operation of any co-insurance provisions; and, except if such Mortgaged
Property is operated as a mobile home park, is also covered by business
interruption or rental loss insurance, in an amount at least equal to 12
months of operations of the related Mortgaged Property (or in the case of
a Mortgaged Property without any elevator, 6 months), all of which was in
full force and effect with respect to each related Mortgaged Property;
and, as of the Cut-Off Date, to the actual knowledge of the Seller, all
insurance coverage required under each Mortgage, which insurance covers
such risks and is in such amounts as are customarily acceptable to prudent
commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property in the
jurisdiction in which such Mortgaged Property is located, is in full force
and effect with respect to each related Mortgaged Property; all premiums
due and payable through the Closing Date have been paid; and no notice of
termination or cancellation with respect to any such insurance policy has
been received by the Seller; and except for certain amounts not greater
than amounts which would be considered prudent by an institutional
commercial mortgage lender with respect to a similar Mortgage Loan and
which are set forth in the related Mortgage, any insurance proceeds in
respect of a casualty loss, will be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property or (ii) the
reduction of the outstanding principal balance of the Mortgage Loan,
subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent institutional lenders for similar loans. The Mortgaged
Property is also covered by comprehensive general liability insurance
against claims for personal and bodily injury, death or property damage
occurring on, in or about the related Mortgaged Property, in an amount
customarily required by prudent institutional lenders.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with respect to
non-payment, 10 days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires that the
Mortgagor maintain insurance as described above or permits the Mortgagee
to require insurance as described above, and permits the Mortgagee to
purchase such insurance at the Mortgagor's expense if Mortgagor fails to
do so.
14. (A) Other than payments due but not yet 30 days or more delinquent, to the
Seller's actual knowledge, based upon due diligence customarily performed
with the servicing of comparable mortgage loans by prudent institutional
lenders, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note, and to the Seller's actual knowledge no event (other than payments
due but not yet delinquent) which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, provided,
however, that this representation and warranty does not address or
otherwise cover any default, breach, violation or event of acceleration
that specifically pertains to any matter otherwise covered by any other
representation and warranty made by the Seller in any of clauses (10),
(15) and (19) of this Schedule I or in any clause of Schedule II or III,
and (B) the Seller has not waived any material default, breach, violation
or event of acceleration under such Mortgage or Mortgage Note, except for
a written waiver contained in the related Mortgage File being delivered to
the Purchaser, and pursuant to the terms of the related Mortgage or the
related Mortgage Note, and other documents in the related Mortgage File no
Person or party other than the holder of such Mortgage Note may declare
any event of default or accelerate the related indebtedness under either
of such Mortgage or Mortgage Note.
15. As of the Cut-Off Date, the Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Except as set forth below, each related Mortgage does not provide for or
permit, without the prior written consent of the holder of the Mortgage
Note, each related Mortgaged Property to secure any other promissory note
or obligation except as expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage, or any substantially similar successor provision).
Accordingly, such Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The Mortgage Loan documents with
respect to each Defeasance Loan do not allow such Defeasance Loan to be
defeased prior to two years after the Startup Date.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow greater than 100% of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
borrower has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related borrower or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy or similar law affecting the right of
creditors and the application of principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged Property
is the subject of, any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to the AB Mortgage
Loans) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. Except as set forth below and subject to certain exceptions which are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property, each related Mortgage or loan agreement
contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or loan agreement, the related Mortgaged
Property, or any controlling interest in the related Mortgagor, is
directly transferred or sold (other than by reason of family and estate
planning transfers and transfers of less than a controlling interest in a
mortgagor, or a substitution or release of collateral within the
parameters of paragraph (26) below), or encumbered in connection with
subordinate financing by a lien or security interest against the related
Mortgaged Property, other than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Except as set forth below, since origination, no material portion of the
related Mortgaged Property has been released from the lien of the related
Mortgage in any manner which materially and adversely affects the value of
the Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage, and, except with respect to Mortgage Loans
(a) which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) U.S. Treasury
obligations sufficient to pay the Mortgage Loans in accordance with their
terms, (b) where a release of the portion of the Mortgaged Property was
contemplated at origination and such portion was not considered material
for purposes of underwriting the Mortgage Loan, (c) where release is
conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents adequate
consideration for such Mortgaged Property, or (d) which permit the related
Mortgagor to substitute a replacement property in compliance with REMIC
Provisions, the terms of the related Mortgage do not provide for release
of any portion of the Mortgaged Property from the lien of the Mortgage
except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from governmental
authorities, a legal opinion, an endorsement to the related title policy,
or based upon other due diligence considered reasonable by prudent
commercial conduit mortgage lenders in the lending area where the
applicable Mortgaged Property is located, as of the date of origination of
such Mortgage Loan and as of the Cut-Off Date, there are no material
violations of any applicable zoning ordinances, building codes and land
laws applicable to the Mortgaged Property or the use and occupancy thereof
which (i) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (ii)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
the title insurance) and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material and adverse extent
(unless affirmatively covered by title insurance).
29. With respect to at least 95% of the Mortgage Loans (by balance) having a
Cut-Off Date Balance in excess of 1% of the Initial Pool Balance, the
related Mortgagor has covenanted in its organizational documents and/or
the Mortgage Loan documents to own no significant asset other than the
related Mortgaged Property or Mortgaged Properties, as applicable, and
assets incidental to its ownership and operation of such Mortgaged
Property, and to hold itself out as being a legal entity, separate and
apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. Except as set forth below, as of the date of origination and, to the
Seller's actual knowledge, as of the Cut-Off Date, there was no pending
action, suit or proceeding, or governmental investigation of which it has
received notice, against the Mortgagor or the related Mortgaged Property
an adverse outcome of which could reasonably be expected to materially and
adversely affect such Mortgagor's performance under the related Mortgage
Loan documents or the security intended to be provided by the Mortgage
Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for complied as of the
date of origination with, or is exempt from, applicable state or federal
laws, regulations and other requirements pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Mortgage Loan that is
cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with
respect to such improvements and such policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property, and, as of the Cut-Off
Date, the Seller has no actual knowledge that the related Mortgagor, the
related lessee, franchisor or operator was not in possession of such
licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other
intentional material misrepresentation. Furthermore, the Mortgage Loan
documents for each Mortgage Loan provide that the related Mortgagor shall
be liable to the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes
and creates a valid, subsisting and enforceable lien and security interest
in the related Mortgagor's interest in all leases, subleases, licenses or
other agreements pursuant to which any Person is entitled to occupy, use
or possess all or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium constitutes a
"customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date, (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note and (3) only to facilitate the
disposition of the Mortgaged Property and not as a part of an arrangement
to collateralize a REMIC offering with obligations that are not real
estate mortgages. In addition, if such Mortgage contains such a defeasance
provision, it provides (or otherwise contains provisions pursuant to which
the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the
defeasance collateral. The related Mortgage Loan documents permit the
lender to charge all of its expenses associated with a defeasance to the
Mortgagor (including rating agencies' fees, accounting fees and attorneys'
fees), and provide that the related Mortgagor must deliver (or otherwise,
the Mortgage Loan documents contain certain provisions pursuant to which
the lender can require) (a) an accountant's certification as to the
adequacy of the defeasance collateral to make payments under the related
Mortgage Loan for the remainder of its term, (b) an Opinion of Counsel
that the defeasance complies with all applicable REMIC Provisions, and (c)
assurances from the Rating Agencies that the defeasance will not result in
the withdrawal, downgrade or qualification of the ratings assigned to the
Certificates. Notwithstanding the foregoing, some of the Mortgage Loan
documents may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except as set forth below, none of the Mortgaged Properties are
encumbered, and none of the Mortgage Loan documents permit the related
Mortgaged Property to be encumbered subsequent to the Closing Date without
the prior written consent of the holder thereof, by any lien securing the
payment of money junior to or of equal priority with, or superior to, the
lien of the related Mortgage (other than Title Exceptions, taxes,
assessments and contested mechanics and materialmens liens that become
payable after the after the Cut-Off Date of the related Mortgage Loan).
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTY NO. 8
Loan No. Exception
-------- ---------
94 Aspen Summit Plaza The Mortgaged Property encroaches 10 feet on an
adjacent property. Encroachment evidenced by Line
of Credit Deed of Trust dated December 14, 1997,
in the amount of $7,400,000 The title company
insures over the encroachment.
REPRESENTATION AND WARRANTY NO. 17
Loan No. Exception
-------- ---------
5 Double Tree Rockville The related borrower has mezzanine debt in the
amount of $12,800,000 secured, in part, by an
ownership interest in the related borrower.
REPRESENTATION AND WARRANTY NO. 23
Loan No. Exception
-------- ---------
5 Double Tree Rockville The related borrower has mezzanine debt in the
amount of $12,800,000 secured, in part, by an
ownership interest in the related borrower.
REPRESENTATION AND WARRANTY NO. 26
Loan No. Exception
-------- ---------
1 Panama City Mall Release parcel can be transferred to a 3rd party
for construction of a fourth department store.
Borrower must satisfy certain conditions prior to
release.
REPRESENTATION AND WARRANTY NO. 31
Loan No. Exception
-------- ---------
0 Xxxxxx Xxxx Xxxxxxxxx A $10,000 negligence and breach of contract
lawsuit and a $5,000,000 slip and fall lawsuit are
pending.
REPRESENTATION AND WARRANTY NO. 46
Loan No. Exception
-------- ---------
5 Double Tree Rockville The related borrower has mezzanine debt in the
amount of $12,800,000 secured, in part, by an
ownership interest in the related borrower.
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of the
lessor thereunder is required, it has been obtained prior to the Closing
Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in lieu
thereof), the Mortgagor's interest in such ground lease is assignable to
the mortgagee under the leasehold estate and its assigns without the
consent of the lessor thereunder (or, if any such consent is required, it
has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and that any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if an event of
default occurs under the Ground Lease and notice is provided to the
mortgagee and such default is curable by the mortgagee as provided in the
Ground Lease, but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such Ground
Lease is in full force and effect and other than payments due but not yet
30 days or more delinquent, (1) there is no material default, and (2)
there is no event which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the lessee
requires the lessor to give notice of any default by the lessee to the
mortgagee. The ground lease or ancillary agreement further provides that
no notice given is effective against the mortgagee unless a copy has been
given to the mortgagee in a manner described in the ground lease or
ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances superior
to, or of equal priority with, the Mortgage, subject, however, to only the
Title Exceptions or (b) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest
in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity to cure any curable
default under such Ground Lease before the lessor thereunder may terminate
such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage, taken
together, any related insurance proceeds or condemnation award (other than
in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by it having
the right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment or defeasance of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest (except
in cases where a different allocation would not be viewed as commercially
unreasonable by any institutional investor, taking into account the
relative duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to the
outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting that would
be viewed as commercially unreasonable by a prudent commercial lender.
11. The ground lessor under such Ground Lease is required to enter into a new
lease upon termination of the Ground Lease for any reason, including the
rejection of the Ground Lease in bankruptcy.
SCHEDULE III
CREDIT LEASE LOAN REPRESENTATIONS AND WARRANTIES
1. The lease payments due under the related Credit Lease, together
with any escrow payments held by the Seller or its designee, are equal to or
greater than the payments due with respect to the related Mortgage Loan.
2. Except as set forth below, the Mortgagor does not have any
material monetary obligations under the related Credit Lease, and every material
monetary obligation associated with managing, owning, developing and operating
the leased property, including, but not limited to, the costs associated with
utilities, taxes, insurance, maintenance and repairs is an obligation of the
related Tenant.
3. Except as set forth below, the Mortgagor does not have any
nonmonetary obligations under the related Credit Lease, except for the delivery
of possession of the leased property.
4. The related Tenant cannot terminate such Credit Lease for any
reason prior to the payment in full of: (a) the principal balance of the related
Mortgage Loan; (b) all accrued and unpaid interest on such Mortgage Loan; and
(c) any other sums due and payable under such Mortgage Loan, as of the
termination date, which date is a rent payment date, except for a material
default by the related Mortgagor under the Credit Lease or due to a casualty or
condemnation event, in which case, a Lease Enhancement Policy insures against
such risk.
5. In the event the related Tenant assigns or sublets the related
leased property, such Tenant (and if applicable, the related guarantor) remains
obligated under the related Credit Lease.
6. Based upon the customary due diligence performed by the
originator at origination, each property related to a Credit Lease Loan is one
or more separate tax lots, except properties concerning which adequate funds
have been escrowed to cover taxes due on the entire tax lot or lots.
7. The related Tenant has agreed to indemnify the Mortgagor from any
claims of any nature (a) to which the Mortgagor is subject because of such
Mortgagor's estate in the leased property (except to the extent caused by the
act or omission of the Mortgagor or its agents or employees), or (b) arising
from (i) injury to or death of any person or damage to or loss of property on
the leased property or connected with the use, condition or occupancy of the
leased property, (ii) Tenant's violation of the related Credit Lease, or (iii)
any act or omission of the Tenant.
8. Except as set forth below, the related Tenant has agreed to
indemnify the Mortgagor from any claims of any nature arising as a result of any
hazardous material affecting the leased property and due to such Tenant's use of
the leased property.
9. In connection with Credit Lease Loans with respect to which a
Guaranty exists, the related guarantor guarantees the payment due under the
related Credit Lease and such Guaranty, on its face, contains no conditions to
such payment.
10. Except for the Credit Lease Loans which have residual value
insurance, each Credit Lease Loan fully amortizes over the term of the loan, and
there is no "balloon" payment due under such Credit Lease Loan at maturity.
11. No Tenant under a Credit Lease Loan may exercise any termination
right or offset or set-off right which shall be binding upon the related
mortgagee without providing prior written notice of same to such mortgagee.
12. Each Tenant under each Credit Lease Loan is required to make all
rental payments due under the applicable Credit Lease directly to a lock-box
being maintained by or on behalf of the mortgagee.
13. No material modification or amendment of any Credit Lease Loan
shall be binding upon the related mortgagee without such mortgagee's prior
written notice consent to such material modification or amendment, which consent
may not be unreasonably unwithheld.
14. Except as set forth below, each property related to a Credit
Lease Loan has or will have a permanent certificate of occupancy, and the
related Tenant thereunder has commenced the payment of rent due under the
respective Credit Tenant Lease in accordance with its terms.
15. Each Tenant has delivered a subordination, non-disturbance and
attornment agreement pursuant to which the respective Tenant has agreed in the
event the related mortgagee succeeds to the interest of the Mortgagor under the
Credit Lease by reason of foreclosure or acceptance of a deed in lieu of
foreclosure, the Tenant will attorn to and recognize the mortgagee as its
landlord under the Credit Lease for the remainder of the term of the Credit
Lease.
16. To the Seller's knowledge, the property related to each Credit
Lease Loan is not subject to any other lease other than the related Credit Lease
or any ground lease pursuant to which the related Mortgagor has acquired its
interest in the respective property, no Person has any possessory interest in,
or right to occupy, the subject property except under and pursuant to any such
Credit Lease or ground lease and the related Tenant under each Credit Lease is
in occupancy of the demised premises.
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTY NO. 2
Loan No. Exception
-------- ---------
40 Xxxx'x Xxxxx WV The related borrower has structural repair
obligations. The deed of trust has an ongoing
structural repair reserve in the amount of
$1,912.18 per month. Additionally, the borrower is
required to maintain insurance under a Reciprocal
Easement Agreement. The deed of trust has a
reserve in the amount of $11,038 to be applied to
Mortgagor's cost of obtaining this insurance.
REPRESENTATION AND WARRANTY NO. 3
Loan No. Exception
-------- ---------
40 Xxxx'x Xxxxx WV The related borrower has construction obligations
under the lease, which have been addressed in an
estoppel certificate and escrow agreement. In
addition, the borrower has structural repair
obligations. The deed of trust has an ongoing
structural repair reserve in the amount of
$1,912.18 per month. The borrower is also
responsible for environmental conditions during
construction and in the course of performing
borrower's obligations under the credit lease. The
two principals of the borrower have signed a
hazardous substances and indemnity agreement in
which they covenant to maintain an aggregate net
worth of at least $1,000,000.
REPRESENTATION AND WARRANTY NO. 8
Loan No. Exception
-------- ---------
40 Xxxx'x Xxxxx WV The related Tenant has not agreed to indemnify the
borrower for claims arising from hazardous
materials affecting the leased property. The
principals of the borrower entered into an
indemnification agreement and agreed to maintain
an aggregate net worth of at least $1,000,000.
REPRESENTATION AND WARRANTY NO. 14
Loan No. Exception
-------- ---------
40 Xxxx'x Xxxxx WV Pursuant to a zoning letter from the City Clerk,
certificates of occupancy are not issued or
required.
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Exhibit A to the GACC Mortgage Loan Purchase Agreement
------------------------------------------------------
MORTGAGE
LOAN
NUMBER PROPERTY NAME STREET ADDRESS CITY STATE ZIP CODE
------ ------------- -------------- ---- ----- --------
1 Panama City Mall 0000 Xxxxxx Xxxxxx Xxxx Xx. Xxxx Xxxxxx Xxxx XX 00000
5 DoubleTree Rockville 0000 Xxxxxxxxx Xxxx Xxxxxxxxx XX 00000
00 Xxxx Xxxx Xxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxxxx Xxxx Xxxx Xxxxx XX 00000
21.1 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.2 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.3 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.4 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.5 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.6 0000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX 00000
21.7 000 Xxxxxxxxxx Xxxxxxx 000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxx Xxxxx XX 00000
21.8 0000 Xxxxxxxxxx Xxxxxxx 0000 Xxxxxxxxxx Xxxxxxx Xxxx Xxxx Xxxxx XX 00000
37 0000 X Xxxxxx 0000 X Xxxxxx, XX Xxxxxxxxxx XX 00000
40 Xxxx'x Xxxxx WV Xxxxxx Xxxxxx Xxxx. X.X. Xx. 000 Xxxxx XX 00000
00 00xx Xxxxxx 0000, 0000, and 0000 00xx Xxxxxx XX Xxxxxxxxxx XX 00000
54 Le Fleur's Gallery Center 0000 Xxxxx X-00 Xxxxxxxx Xxxx Xxxxxxx XX 00000
61 Grove Business Center 00000-00000 Xxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
83 CVS 8099 000 Xxxxx Xxxxxxx Xxxxxxx XX 00000
89 CVS Morrisville 000 Xxxx Xxxxxxx Xxx. Xxxxxxxxxxx XX 00000
90 Rampart Facility 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
00 Xxxxx Xxxxxx Xxxxx 0000 XX Xxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000
100 CVS Sumter 00 Xxxx Xxxxxxx Xx. Xxxxxx XX 00000
106 CVS Hildebran 000 X Xxxxxxx 00 Xxxx Xxxxxxxxx XX 00000
MATURITY
ORIGINAL REMAINING STATED DATE
MORTGAGE CUT-OFF TERM TERM TO MATURITY OR ARD
LOAN DATE MONTHLY P&I MORTGAGE TO MATURITY MATURITY DATE BALLOON
NUMBER BALANCE PAYMENT RATE OR ARD (MOS.) OR ARD (MOS.) (OR ARD DATE) BALANCE ($)
------ ------- ------- ---- ------------- ------------- ------------- -----------
1 41,000,000.00 281,084.08 7.3000% 120 120 1-Aug-11 36,034,356.86
5 24,233,308.60 180,281.70 7.5760% 119 113 1-Jan-11 20,143,990.42
21 11,494,082.49 81,277.65 7.6100% 120 119 1-Jul-11 10,188,350.11
21.1 XX XX XX XX XX XX XX
00.0 XX XX XX XX XX NA NA
21.3 NA NA NA NA NA NA NA
21.4 NA NA NA NA NA NA NA
21.5 NA NA NA NA NA NA NA
21.6 NA NA NA NA NA NA NA
21.7 NA NA NA NA NA NA XX
00.0 XX XX XX XX XX XX XX
00 7,490,394.37 52,441.09 7.5000% 120 118 1-Jun-11 6,625,459.95
40 7,123,285.10 61,790.65 8.4400% 203 202 1-Jun-18 2,200,244.45
52 5,584,632.76 38,201.87 7.2500% 120 116 1-Apr-11 4,915,780.41
54 5,477,386.15 39,562.75 7.8300% 120 119 1-Jul-11 4,881,314.66
61 4,462,832.60 32,080.42 7.7800% 120 119 1-Jul-11 3,972,354.99
83 2,948,693.45 22,372.72 7.7500% 264 257 15-Jan-23 933,752.06
89 2,616,139.08 21,324.18 7.9000% 264 257 1-Jan-23 2,692.52
90 2,400,000.00 17,493.37 7.9300% 120 120 1-Aug-11 2,142,580.58
94 2,197,442.92 15,951.53 7.8750% 120 118 1-Jun-11 1,961,511.84
100 1,725,127.20 14,204.14 8.0000% 217 209 15-Jan-19 0.00
106 1,526,789.00 12,607.23 8.1250% 229 221 1-Jan-20 0.00
MORTGAGE ORIGINAL REMAINING GROUND MASTER ARD ANTICIPATED ADDITIONAL MORTGAGE
LOAN AMORTIZATION AMORTIZATION LEASE SERVICING LOAN REPAYMENT INTEREST LOAN
NUMBER TERM TERM (Y/N) FEE RATE (Y/N) DATE RATE SELLER
------ ---- ---- ----- -------- ----- ---- ---- ------
1 360 360 Fee 0.0500% N NA NA Deutsche Bank
5 300 300 Fee 0.0500% Y 1-Jan-11 11.0760% Deutsche Bank
21 360 359 Fee 0.0500% N NA NA Deutsche Bank
21.1 NA NA Fee NA N NA NA Deutsche Bank
21.2 NA NA Fee NA N NA NA Deutsche Bank
21.3 NA NA Fee NA N NA NA Deutsche Bank
21.4 NA NA Fee NA N NA NA Deutsche Bank
21.5 NA NA Fee NA N NA NA Deutsche Bank
21.6 NA NA Fee NA N NA NA Deutsche Bank
21.7 NA NA Fee NA N NA NA Deutsche Bank
21.8 NA NA Fee NA N NA NA Deutsche Bank
37 360 358 Fee 0.0500% N NA NA Deutsche Bank
40 244 243 Fee 0.0500% N NA NA Deutsche Bank
52 360 356 Fee 0.0500% N NA NA Deutsche Bank
54 360 359 Fee 0.0500% N NA NA Deutsche Bank
61 360 359 Fee 0.0500% N NA NA Deutsche Bank
83 312 305 Fee 0.0500% N NA NA Deutsche Bank
89 264 257 Fee 0.0500% N NA NA Deutsche Bank
90 360 360 Fee 0.0500% N NA NA Deutsche Bank
94 360 358 Fee 0.0500% N NA NA Deutsche Bank
100 217 209 Fee 0.0500% N NA NA Deutsche Bank
106 229 221 Fee 0.0500% N NA NA Deutsche Bank
CREDIT
MORTGAGE LEASE LEASE
LOAN LOAN CTL CTL ENHANCEMENT RVI
NUMBER (Y/N) TENANT GUARANTOR POLICY POLICY
------ ----- ------ --------- ------ ------
1 N XX XX XX XX
0 X XX XX XX XX
21 N NA NA NA NA
21.1 N XX XX XX XX
00.0 X XX XX XX XX
21.3 N XX XX XX XX
00.0 X XX XX XX XX
21.5 N XX XX XX XX
00.0 X XX XX XX XX
21.7 N NA NA NA NA
21.8 N NA NA XX XX
00 X XX XX XX XX
00 Y Lowe's Home Centers, Inc. Lowe's Home Centers, Inc. Y Y
(Guaranteed by Parent) (Guaranteed by Parent)
52 N NA NA NA NA
54 N NA NA XX XX
00 X XX XX XX XX
00 Y CVS 8099 (CVS Corp. guarantee) CVS Inc. N Y
89 Y Morrisville CVS, Inc. CVS Corp. X X
00 X XX XX XX XX
94 N NA NA NA NA
100 Y Sumter CVS, Inc. (CVS Corp. Guarantee) CVS Corp. Y N
106 Y Revco Discount Drug Centers, Inc. CVS Corp. Y N
(CVS Corp. Guarantee)
INTEREST ANNUAL INITIAL DEPOSIT
MORTGAGE CROSS DEFEASANCE RESERVE AGGREGATE DEPOSIT TO TO CAPITAL INITIAL
LOAN COLLATERALIZED/ LOAN SECURED LOAN LOCK ENVIRONMENTAL REPLACEMENT IMPROVEMENTS TI/LC
NUMBER DEFAULTED FLAG (Y/N) BY LC (Y/N) BOX ESCROW @ CLOSE RESERVE RESERVE ESCROW
------ -------------- ----- ----- ----- --- -------------- ------- ------- ------
1 NA Y N Y Hard 0.00 49,847.04 0.00 0.00
5 NA Y N Y Hard 0.00 0.00 0.00 0.00
21 NA Y N Y None 0.00 33,957.96 0.00 1,375,000.00
21.1 NA NA N NA None NA NA NA NA
21.2 NA NA N NA None NA NA NA NA
21.3 NA NA N NA None NA NA NA NA
21.4 NA NA N NA None NA NA NA NA
21.5 NA NA N NA None NA NA NA NA
21.6 NA NA N NA None NA NA NA NA
21.7 NA NA N NA None NA NA NA NA
21.8 NA NA N NA None NA XX XX XX
00 XX X X X Xxxx 0.00 12,923.04 0.00 0.00
40 NA Y N Y Hard 0.00 22,946.16 757,106.00 0.00
52 NA Y N Y None 0.00 4,833.96 0.00 0.00
54 NA Y N Y None 0.00 15,351.96 0.00 88,320.00
61 NA Y N Y None 0.00 18,084.00 7,875.00 50,808.00
83 NA Y N Y Hard 0.00 0.00 0.00 0.00
89 NA Y N Y Hard 0.00 1,923.72 0.00 0.00
90 NA N N Y None 0.00 11,448.00 0.00 10,260.00
94 NA Y N Y None 0.00 3,945.84 0.00 125,000.00
100 NA Y N Y Hard 0.00 2,025.00 0.00 0.00
106 NA Y N Y Hard 0.00 1,923.72 0.00 0.00
EXHIBIT B
Mortgage Loan Purchase Agreement, dated as of August 15, 2001.
CERTIFICATES:
First Union National Bank Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series 2001-C3
--------------------------------------------------------------------------------
Aggregate Certificate
Principal Balance or
Initial Aggregate Percentage Interest
Class Certificate Principal of Class to be
Designation Balance of Class Retained by Seller Purchase Price
--------------------------------------------------------------------------------
Z-II N/A 100% $0
--------------------------------------------------------------------------------
