EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March 21, 2005 (this
"Agreement"), is entered into between KeyBank National Association (the
"Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of March 1, 2005 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, KeyCorp Real Estate Capital
Markets, Inc., as master servicer (in such capacity, the "Master Servicer"),
Clarion Partners, LLC, as special servicer (in such capacity, the "Special
Servicer"), LaSalle Bank National Association, as trustee (the "Trustee") and
ABN AMRO Bank N.V., as fiscal agent (the "Fiscal Agent"). Capitalized terms used
but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
March 21, 2005 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative
of Banc of America Securities LLC ("Banc of America"), KeyBanc Capital Markets,
a Division of McDonald Investments Inc. ("McDonald Investments"), X.X. Xxxxxx
Securities Inc. ("JPMorgan") and Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx
Xxxxxxx"; Xxxxxxx Xxxxx, Banc of America, McDonald Investments, JPMorgan and
Xxxxxx Xxxxxxx, collectively, in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (such Certificates, the
"Publicly-Offered Certificates"). The Purchaser has also entered into a
Certificate Purchase Agreement, dated as of March 21, 2005 (the "Certificate
Purchase Agreement"), with Xxxxxxx Xxxxx, for itself and as representative of
Banc of America (together in such capacity, the "Initial Purchasers"), whereby
the Purchaser will sell to the Initial Purchasers all of the remaining
Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of
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$190,966,323 (the "KeyBank 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 KeyBank Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-off Date
(after giving effect to any payments due on or before such date, whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-off Date Pool Balance") of $1,137,261,494 (subject to a variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans shall take place
on March 29, 2005 or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 100.3170% of the
KeyBank Mortgage Loan Balance as of the Cut-off Date, plus (ii) $812,566, which
amount represents the amount of interest accrued on the KeyBank Mortgage Loan
Balance at the related Net Mortgage Rate for the period from and including the
Cut-off Date up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, the Closing Date Deposit (in the amount of $21,925.35) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall be delivered
to the account specified by the Master Servicer by wire transfer of immediately
available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Consideration, the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may be amended,
shall conform to the requirements set forth in this Agreement and the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will have,
on behalf of the Purchaser, delivered to the Trustee on or before the Closing
Date, the documents and instruments specified below with respect to each
Mortgage Loan (each, a "Mortgage File").
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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 for such Mortgage Loan,
including any power of attorney related to the execution thereof (or a lost
note affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of LaSalle
Bank National Association, as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through
Certificates, Series 2005-MKB2, or in blank;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in each
case (unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of LaSalle Bank National
Association, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-MKB2, Commercial Mortgage Pass-Through Certificates,
Series 2005-MKB2, or in blank;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan (to the extent not already assigned pursuant to clause (iv)
above) in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MKB2, Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, or in blank;
(vi) originals or copies of any consolidation, assumption, substitution
and modification agreements in those instances where the terms or
provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy
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that has been executed by an authorized representative of the title company
or an agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the Closing
Date) and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, a UCC Financing Statement assignment, in form suitable for
filing in favor of LaSalle Bank National Association, as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MKB2, Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, as assignee, or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground lessor
estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or reserve
agreement, any security agreement, any management agreement, any agreed
upon procedures letter, any lockbox or cash management agreements, any
environmental reports or any letter of credit, in each case relating to
such Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and in
any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment of
Assignment of Leases and any other recordable documents relating to each such
Mortgage Loan in favor of the Trustee that is referred to in clause (iv) of the
definition of "Mortgage File" and each UCC Financing Statement assignment in
favor of the Trustee and that is referred to in clause (viii) of the definition
of "Mortgage File." Each such assignment and UCC Financing Statement assignment
shall reflect that the recorded original should be returned by the public
recording office to the Trustee following recording, and each such assignment
and UCC Financing Statement assignment shall reflect that the file copy thereof
should be returned to the Trustee following filing; provided, that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Recording/Filing Agent shall
obtain therefrom a certified copy of the recorded original. If any
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such document or instrument is lost or returned unrecorded or unfiled, as the
case may be, because of a defect therein, then the Seller shall prepare a
substitute therefor or cure such defect or cause such to be done, as the case
may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Trustee (or, if the Mortgage Loan is then no longer subject to
the Pooling and Servicing Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all such
recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery performed
by the Trustee at the Seller's request and the fees of the Recording/Filing
Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver any
draft documents, privileged or other communications, credit underwriting or due
diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
and the Seller has taken
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all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions
contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's articles of association or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound,
which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or might have consequences that would materially and adversely
affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or might 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 association, 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.
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(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Seller, threatened against the Seller in any court
or by or before any other governmental agency or instrumentality which
would, in the Seller's good faith and reasonable judgment, prohibit its
entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach shall materially
and adversely affect the value of the related Mortgage Loan or the interests of
the Certificateholders therein, cure such Document Defect or Breach, as the case
may be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan
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(which, for purposes of this clause (ii), shall include an REO Loan) not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the Master Servicer for deposit into
the Collection Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that, unless the breach would cause the Mortgage
Loan not to be a Qualified Mortgage, if such Document Defect or Breach is
capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, the Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan (which, for purposes of such repurchase or substitution,
shall include an REO Loan)); and provided, further, that with respect to such
additional 90-day period, the Seller shall have delivered an officer's
certificate to the Trustee setting forth the reason such Document Defect or
Breach is not capable of being cured within the initial 90-day period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Document Defect or Breach will be cured
within the additional 90-day period; and provided, further, that no Document
Defect (other than with respect to a Specially Designated Mortgage Loan
Document) shall be considered to materially and adversely affect the interests
of the Certificateholders or the value of the related Mortgage Loan unless the
document with respect to which the Document Defect exists is required in
connection with an imminent enforcement of the mortgagee's rights or remedies
under the related Mortgage Loan, defending any claim asserted by any borrower or
third party with respect to the Mortgage Loan, establishing the validity or
priority of any lien on any collateral securing the Mortgage Loan or for any
immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach materially
and adversely affects the value of the related Mortgage Loan or the interests of
the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), and is not cured as provided for above, shall require the repurchase or
substitution of all such Crossed Loans unless (1) the weighted average debt
service coverage ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less than
the weighted average debt service coverage ratio for all such Crossed Loans,
including the affected Crossed Loan, for the four calendar quarters immediately
preceding such repurchase or substitution, and (2) the weighted average loan
to-value ratio for the remaining Crossed Loans determined at the time of
repurchase or substitution based upon an appraisal obtained by the Special
Servicer at the expense of the Seller shall not be greater than the weighted
average loan-to-value ratio for all such Crossed Loans, including the affected
Crossed Loan determined at the time of repurchase or substitution based upon an
appraisal obtained by the Special Servicer at the expense of the Seller;
provided, that if such debt service coverage and loan-to-value criteria are
satisfied and any Crossed Loan (that is not the Crossed Loan directly affected
by the subject Breach or Document Defect) is not so materially and adversely
affected and therefore is not so repurchased or substituted, then such Crossed
Loan shall be released from its cross-collateralization and cross-default
provision so long as such Crossed Loan (that is not the Crossed Loan directly
affected by the subject Breach or Document Defect) is held in the Trust Fund;
and provided, further, that the repurchase or replacement of less than all such
Crossed Loans and the release of any Crossed Loan from a cross-collateralization
and cross-default provision shall be subject to the delivery by the Seller to
the Trustee, at the expense of the Seller, of an Opinion of Counsel to the
effect that such release
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would not cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions; and provided, further, that the Controlling Class Representative
shall have consented to the repurchase or replacement of the affected Crossed
Loan, which consent shall not be unreasonably withheld. For a period of two
years from the Closing Date, so long as there remains any Mortgage File relating
to a Mortgage Loan as to which there is any uncured Document Defect or Breach
known to the Seller, the Seller shall provide, once every ninety days, the
officer's certificate to the Trustee described above as to the reasons such
Document Defect or Breach remains uncured and as to the actions being taken to
pursue cure; provided, however, that, without limiting the effect of the
foregoing provisions of this Section 3(c), if such Document Defect or Breach
shall materially and adversely affect the value of such Mortgage Loan or the
interests of the holders of the Certificates therein (subject to the last
proviso in the second preceding sentence), the Seller shall in all cases on or
prior to the second anniversary of the Closing Date either cause such Document
Defect or Breach to be cured or repurchase or substitute for the affected
Mortgage Loan. Notwithstanding the foregoing, the delivery of a commitment to
issue a policy of lender's title insurance as described in representation 8 set
forth on Schedule I hereto in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect or Breach
with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of the
other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or
otherwise on a pro rata basis based upon their outstanding Stated Principal
Balances. Notwithstanding the foregoing, if a Crossed Loan is modified to
terminate the related cross-collateralization and/or cross-default provisions,
the Seller shall furnish to the Trustee an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
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The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy for a breach of representation 30 set forth on Schedule
I hereto shall be the cure of such breach by the Seller, which cure shall be
effected through the payment by the Seller of such costs and expenses (without
regard to whether such costs and expenses are material or not) specified in such
paragraph that have not, at the time of such cure, been received by the Master
Servicer or the Special Servicer from the related Mortgagor and not a repurchase
of the related Mortgage Loan. To the extent any fees or expenses that are the
subject of a cure by the Seller are subsequently obtained from the related
Mortgagor, the cure payment made by the Seller shall be returned to the Seller.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price (as defined
in the Pooling and Servicing Agreement) or Substitution Shortfall Amount(s), as
applicable, in the Collection Account, and, if applicable, the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively, (i) the
Trustee shall execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller, the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan possessed
by it, and (iii) the Master Servicer and the Special Servicer shall release to
the Seller any Escrow Payments and Reserve Funds held by it in respect of such
repurchased or deleted Mortgage Loan(s).
(e) This Section 3 provides the sole remedy available to the Purchaser,
the Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and the Purchaser has
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and authority to execute,
deliver and perform this Agreement and all transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer,
10
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser of
its obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or to
the knowledge of the Purchaser, threatened against the Purchaser in any court or
by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state, municipal
or other governmental agency or body, which default might have consequences that
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the condition (financial or
11
other) or operations of the Purchaser or its properties or might have
consequences that would materially and adversely affect its performance
hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) A letter from the independent accounting firm of Ernst & Young LLP
in form satisfactory to the Purchaser, relating to certain information regarding
the Mortgage Loans and Certificates as set forth in the Prospectus and
Prospectus Supplement, respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of March 21, 2005, among the
Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., Bank of America, N.A., the
Purchaser, the Underwriters and the Initial Purchasers. 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) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of March 1, 2005,
between the Seller and KeyCorp Real Estate Capital Markets, Inc., duly executed
by such parties;
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(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect that
(i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or omitted or omit to state therein a material fact necessary
in order to make the statements therein relating to the Mortgage Loans, in light
of the circumstances under which they were made, not misleading, and (ii) such
officer has carefully examined the Specified Portions of the Private Placement
Memorandum, dated as of March 21, 2005 (the "Memorandum") (pursuant to which
certain classes of the Private Certificates are being privately offered) and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Prospectus Supplement (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and, without
limitation,
13
exclusive of any statements in such sections that purport to describe the
servicing and administration provisions of the Pooling and Servicing Agreement):
"Summary of Prospectus Supplement-- Relevant Parties--Mortgage Loan Sellers,"
"Summary of Prospectus Supplement-- The Mortgage Loans And The Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool". The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the articles of association and bylaws of
the Seller, and (iii) a certificate of corporate existence of the Seller issued
by the Office of the Comptroller of the Currency not earlier than thirty (30)
days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both the
Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding between the Seller and the Purchaser with respect to the
transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 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 UCC 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 (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the
14
Distribution Account or, if established, the REO Account whether in the form of
cash, instruments, securities or other property; (iii) the assignment to the
Trustee of the interest of the Purchaser as contemplated by Section 1 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 UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement. The Seller does hereby consent to the filing by
the Purchaser of financing statements relating to the transactions contemplated
hereby without the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
15
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding is
commenced between the Seller and the Purchaser regarding their respective rights
and obligations under this Agreement, the prevailing party shall be entitled to
recover, in addition to damages or other relief, costs and expenses, attorneys'
fees and court costs (including, without limitation, expert witness fees). As
used herein, the term "prevailing party" shall mean the party that obtains the
principal relief it has sought, whether by compromise settlement or judgment. If
the party that commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement,
16
including, without limitation, any defined terms therein, unless the Seller has
consented to such amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of this Agreement, including,
without limitation, each of the representations and warranties set forth in
Schedule I hereto and each of the capitalized terms used herein but defined in
the Pooling and Servicing Agreement, shall be interpreted in a manner consistent
with this Section 20. In addition, if there exists with respect to any Crossed
Loan Group only one original of any document referred to in the definition of
"Mortgage File" in this Agreement and covering all the Mortgage Loans in such
Crossed Loan Group, the inclusion of the original of such document in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan Group shall be
deemed an inclusion of such original in the Mortgage File for each such Mortgage
Loan.
17
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
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
x/x XxxXxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxx, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxxx X. Xxxxx
KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxx X. Xxxxxxx
Polsinelli Xxxxxxx Xxxxx Suelthaus PC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President, Chief
Officer in Charge of Commercial
Mortgage Securitization
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
KEYBANK MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in March 2005 without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the twelve-month
period immediately preceding the Due Date for such Mortgage Loan in March 2005,
without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding upon
the title insurer); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the related
Mortgage File, an Assignment of Leases (either as a separate instrument or as
part of the Mortgage) that relates to and was delivered in connection with each
Mortgage Loan and that establishes and creates a valid, subsisting and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
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amendments or supplements thereto included in the related Mortgage File) has not
been impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part. With respect to each Mortgage Loan, since the later
of (a) March 4, 2005 and (b) the closing date of such Mortgage Loan, the Seller
has not executed any written instrument that (i) impaired, satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified or altered
any material term of such Mortgage Loan, (iii) released the Mortgaged Property
or any material portion thereof from the lien of the related Mortgage, or (iv)
released the related Mortgagor from its obligations under such Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding sentence does not
relate to any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan is
covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if
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it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee as sole insured without the consent of or notice to
the insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). None of
the Mortgage Loan documents contains any provision that expressly excuses the
related Mortgagor from obtaining and maintaining insurance coverage for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release of
the related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable
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state law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "Environmental Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve (12) months
prior to the date hereof, (c) a copy of each such Environmental Report has been
delivered to the Purchaser, and (d) either: (i) no such Environmental Report, if
any, reveals that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor impaired property environmental insurance policy
and each such policy is noncancellable during its term, is in the amount at
least equal to 125% of the principal balance of the Mortgage Loan, has a term
ending no sooner than the date which is five years after the maturity date of
the Mortgage Loan to which it relates and either does not provide for a
deductible or the deductible amount is held in escrow and all premiums have been
paid in
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full. Each Mortgagor represents and warrants in the related Mortgage Loan
documents that except as set forth in certain environmental reports and to its
knowledge it has not used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
hazardous materials. The related Mortgagor (or affiliate thereof) has agreed to
indemnify, defend and hold the Seller and its successors and assigns harmless
from and against any and all losses, liabilities, damages, injuries, penalties,
fines, out-of-pocket expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by or asserted against,
any such party resulting from a breach of environmental representations,
warranties or covenants given by the Mortgagor in connection with such Mortgage
Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject to
the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as a
whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreements that would deny
the mortgagee the principal benefits intended to be provided thereby, except in
each case, with respect to the enforceability of any provisions requiring the
payment of default interest, late fees, additional interest, prepayment premiums
or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing a Mortgage Loan is the subject
of a business interruption or rent loss insurance policy providing coverage for
at least twelve (12) months (or a specified dollar amount which is reasonably
estimated to cover no less than twelve (12) months of rental income), unless
such Mortgaged
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Property constitutes a manufactured housing community. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the time
of the origination of such Mortgage Loan, in an area identified in the Federal
Register by the Flood Emergency Management Agency as a special flood hazard area
(Zone A or Zone V), and flood insurance was available, a flood insurance policy
meeting the requirements of the then current guidelines of the Federal Insurance
Administration is in effect with a generally acceptable insurance carrier, in an
amount representing coverage not less than the least of (1) the minimum amount
required, under the terms of coverage, to compensate for any damage or loss on a
replacement basis, (2) the outstanding principal balance of such Mortgage Loan,
and (3) the maximum amount of insurance available under the applicable National
Flood Insurance Administration Program. Each Mortgaged Property located in
California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property. All such hazard and flood
insurance policies contain a standard mortgagee clause for the benefit of the
holder of the related Mortgage, its successors and assigns, as mortgagee, and
are not terminable (nor may the amount of coverage provided thereunder be
reduced) without at least ten (10) days' prior written notice to the mortgagee;
and no such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Additionally, for any Mortgage Loan having a
Cut-off Date Balance equal to or greater than $20,000,000, the insurer for all
of the required coverages set forth herein has a claims paying ability or
financial strength rating from S&P or Xxxxx'x of not less than A-minus (or the
equivalent), or from A.M. Best Company of not less than "A-minus: V" (or the
equivalent) and, if rated by Fitch, of not less than "A-" from Fitch (or the
equivalent). With respect to each Mortgage Loan, the related Mortgage Loan
documents require that the related Mortgagor or a tenant of such Mortgagor
maintain insurance as described above or permit the related mortgagee to require
insurance as described above. Except under circumstances that would be
reasonably acceptable to a prudent commercial mortgage lender or that would not
otherwise materially and adversely affect the security intended to be provided
by the related Mortgage, the Mortgage Loan documents for each Mortgage Loan
provide that proceeds paid under any such casualty insurance policy will (or, at
the lender's option, will) be applied either to the repair or restoration of all
or part of the related Mortgaged Property or to the payment of amounts due under
such Mortgage Loan; provided that the related Mortgage Loan documents may
entitle the related Mortgagor to any portion of such proceeds remaining after
the repair or restoration of the related Mortgaged Property or payment of
amounts due under the Mortgage Loan; and provided, further, that, if the related
Mortgagor holds a leasehold interest in the related Mortgaged Property, the
application of such proceeds will be subject to the terms of the related Ground
Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or
I-8
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage,
taken together, any related casualty insurance proceeds (other than de
minimis amounts for minor casualties) with respect to the leasehold
interest will be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a provision
entitling another party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (ii) to the payment of the
I-9
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and (ii) any such action without such consent is not binding
on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest. No
Mortgage Loan contains any equity participation by the mortgagee thereunder, is
convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and may
be compounded monthly and shall be payable only after the outstanding principal
of such Mortgage Loan is paid in full, and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the
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related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in connection with a defeasance of the related Mortgage Loan;
provided that the Mortgage Loans that are Crossed Loans, and the other
individual Mortgage Loans secured by multiple parcels, may require the
respective mortgagee(s) to grant releases of portions of the related Mortgaged
Property or the release of one or more related Mortgaged Properties upon (i) the
satisfaction of certain legal and underwriting requirements or (ii) the payment
of a release price in connection therewith; and provided, further, that certain
Crossed Groups or individual Mortgage Loans secured by multiple parcels may
permit the related Mortgagor to obtain the release of one or more of the related
Mortgaged Properties by substituting comparable real estate property, subject
to, among other conditions precedent, receipt of confirmation from each Rating
Agency that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the Certificates;
and provided, further, that any Mortgage Loan may permit the unconditional
release of one or more unimproved parcels of land to which the Seller did not
give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i). To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
I-12
31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or caused
the inspection of, the related Mortgaged Property within the preceding twelve
(12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage for each Mortgage Loan contains a
"due-on-sale" clause, which provides for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without the prior written
consent of the holder of such Mortgage, either the related Mortgaged Property,
or any direct controlling equity interest in the related Mortgagor, is
transferred or sold, other than by reason of family and estate planning
transfers, transfers by devise or descent or by operation of law upon death,
transfers of less than a controlling interest in the Mortgagor, transfers of
shares in public companies, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the Mortgagor,
transfers among affiliated Mortgagors with respect to cross-collateralized
Mortgage Loans or multi-property Mortgage Loans, transfers among co-Mortgagors
or transfers of a similar nature to the foregoing meeting the requirements of
the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates except on an arm's-length basis.
36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
I-13
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter into a lockbox arrangement
on the ARD Loan whereby all revenue from the related Mortgaged Property shall be
deposited directly into a designated account controlled by the applicable Master
Servicer.
39. Security Interests. A UCC financing statement has been filed and/or
recorded, or submitted for filing and/or recording, in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more UCC financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording) wherever
necessary to perfect under applicable law such security interests (to the extent
a security interest in such personal property can be perfected by the filing of
a UCC financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
41. Commencement of Amortization. Each Mortgage Loan begins to amortize
prior to its Stated Maturity Date or, in the case of an ARD Loan, prior to its
Anticipated Repayment Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements
I-14
pertaining thereto, no Person has been granted or conveyed the right to service
any Mortgage Loan or receive any consideration in connection therewith.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor, or an entity controlled by a principal of such Mortgagor for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation proceeds. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured by a
Ground Lease and is the subject of representation 18, the interest of the
related Mortgagor in the Mortgaged Property securing each Mortgage Loan is a fee
simple interest in real property and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage requires the related Mortgagor, in some cases at the request of
the lender, to provide the holder of such Mortgage Loan with at least quarterly
operating statements and rent rolls (if there is more than one tenant) for the
related Mortgaged Property and annual financial statements of the related
Mortgagor, and with such other information as may be required therein.
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage or Mortgage Note provides a grace period for delinquent monthly
payments no longer than fifteen (15) days from the applicable Due Date or five
(5) days from notice to the related Mortgagor of the default.
I-15
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor impaired property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy
the "pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure
or deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with respect
to each Mortgage Loan in all material respects have met customary standards
utilized by prudent commercial mortgage loan servicers with respect to whole
loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of the
Mortgage Loans.
I-16
Annex A (to Schedule I)
Exceptions to the Representations and Warranties
REPRESENTATION 2/OWNERSHIP OF MORTGAGE LOANS:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10022004 / Great Eastern Shopping Center
10024610 / Centennial Hanford A third party is entitled to a correspondent
10025294 / US Storage Centers fee
10025870 / Xxxxx Xxxxxxxxx Xxxxxx
00000000 / Xxxxxx Xxxxx Apartments
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REPRESENTATION 10/MORTGAGE PROVISIONS:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10025117/North Main Plaza The related Mortgage Loan documents provide that
the related Mortgagor is required to maintain
insurance for acts of terrorism to the extent such
insurance is commercially available, economically
feasible and is being required by institutional
lenders making securitized loans.
------------------------------------------------------------------------------------------------
10025001/Magnolia Square The related Mortgage Loan documents provide that
the Mortgagor is required to maintain insurance
10025002/Pleasant Run Crossing coverage for acts of terrorism if such coverage is
commercially reasonable for properties similar to
10025932/Hobby Lobby the Mortgaged Property, provided, however that the
related Mortgagor will not be required to maintain
such terrorism coverage if (i) Mortgagor confirms
in writing that it will protect and hold the
mortgagee harmless from losses associated with
terrorism risks by, among other things, depositing
with the mortgagee sums sufficient to pay all
uninsured costs related to a restoration following
any act of terrorism, or prepaying the related
Mortgage Loan in accordance with the provisions of
the related Mortgage Loan documents (including
payment of applicable prepayment consideration),
and (ii) the indemnitor for the related Mortgage
Loan executes a guaranty pursuant to which such
indemnitor guarantees payment of all losses
associated with terrorism risks and such indemnitor
maintains a specified net worth and a specified
loan to value ratio for all properties in which
such entity has a direct or indirect ownership
interest.
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
10024610/Centennial Hanford The related Mortgage Loan documents provide that
upon Mortgagor's request, the related Mortgagor
will not be required to maintain insurance coverage
for acts of terrorism if Lender determines in its
reasonable discretion that the cost of such
terrorism coverage is commercially unreasonable.
------------------------------------------------------------------------------------------------
10025445/Windsor Park Estates The related Mortgage Loan documents provide that
the related Mortgagor will not be required to
maintain insurance coverage for acts of terrorism
if the related Mortgagor produces evidence
satisfactory to Lender in its sole discretion that
the related Mortgagor's insurance costs have
increased by more than 50% due solely to the cost
of such terrorism coverage.
------------------------------------------------------------------------------------------------
10024155/Walgreens Orem The sole tenant, Walgreens Co., is permitted to
provide the necessary coverages and such tenant
10024900/Walgreens Arvada self-insures.
------------------------------------------------------------------------------------------------
REPRESENTATION 14/INSURANCE:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10024155/Walgreens Orem The requirement for business interruption insurance
was waived because the related Mortgagor's lease
10024900/Walgreens Arvada with the sole tenant, Walgreens Co., does not
permit abatement of rent following a casualty.
Walgreens Co. is permitted to self-insure for the
required property and liability insurance
coverages, including terrorism coverage.
------------------------------------------------------------------------------------------------
10023916/Silver Springs Commons The related Mortgage Loan Documents do not
expressly require the related Mortgagor to maintain
the insurance described in this representation, but
evidence of such insurance coverage was obtained in
connection with the organization of the related
Mortgage Loan.
------------------------------------------------------------------------------------------------
REPRESENTATION 18/LEASEHOLD ESTATE:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10026050 / Milford Plaza (viii) The Ground Lease provides that the lessor
will enter into a new lease with a mortgagee upon
termination of the Ground Lease, including as a
result of a rejection in a bankruptcy proceeding,
but alternatively, lessor may elect to repay the
Mortgage Loan in full (including all interest,
penalties and all other sums due under the loan
documents) in lieu of entering into a new lease. A
non-recourse carve-out was added to the Mortgage
Loan documents regarding any failure to pay all
required amounts, including applicable prepayment
consideration, in connection with the lessor's
exercise of such option.
------------------------------------------------------------------------------------------------
REPRESENTATION 28/RELEASES OF MORTGAGED PROPERTIES:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10025795 / Crossroads Town Center If Kroger, a tenant occupying a portion of the
Mortgaged Property, exercises its option to
purchase its demised parcel pursuant to its lease
after the Anticipated Repayment Date, Lender will
release the Kroger parcel provided that certain
conditions are satisfied, including all net
proceeds from the sale of the Kroger parcel are to
be applied to repayment of the outstanding
principal balance of the note, maintenance of
specified loan to value and debt service coverage
ratios and satisfactory REMIC analysis.
------------------------------------------------------------------------------------------------
REPRESENTATION 34/DUE-ON-SALE:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10021892 / Valencia Village Members of the related Mortgagor may obtain
financing secured by pledges of their respective
10025835 / Willow Creek ownership interests in Mortgagor upon the prior
written consent of the holder of the related
Mortgage and satisfaction of certain conditions,
including specified debt service coverage and loan
to value ratios, execution of an intercreditor and
subordination agreement by an institutional
mezzanine lender, establishment of a lockbox
arrangement and receipt of rating agency
confirmation.
------------------------------------------------------------------------------------------------
REPRESENTATION 41/COMMENCEMENT OF AMORTIZATION:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10025001/Magnolia Square Each such Mortgage Loan provides for "interest
only" payments throughout the term of the Mortgage
10025002/Pleasant Run Towne Crossing Loan.
10025932/Hobby Lobby
------------------------------------------------------------------------------------------------
REPRESENTATION 47/OPERATING STATEMENTS:
------------------------------------------------------------------------------------------------
Loan No. Exception
------------------------------------------------------------------------------------------------
10023913/Silver Springs Commons The Mortgage Loan Documents require the delivery of
an annual rather than a quarterly rent roll.
------------------------------------------------------------------------------------------------
10025117/North Main Plaza The Mortgage Loan Documents require the delivery of
monthly rather than quarterly operating statements
and rent rolls.
------------------------------------------------------------------------------------------------
10022004/Great Eastern The Mortgage Loan Documents do not require the
delivery of an annual financial statement of the
related Mortgagor but do require the delivery of an
annual balance sheet of the related Mortgagor and
an annual operating statement with respect to the
Mortgaged Property.
------------------------------------------------------------------------------------------------
10024155/Walgreens - Orem The Mortgage Loan Documents require the delivery of
annual rather than quarterly operating statements
10024900/Walgreens - Arvada and rent rolls.
------------------------------------------------------------------------------------------------
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS
CONDUCTED IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE
WITH RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
[None.]
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR IMPAIRED PROPERTY
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATION 12)
[None.]
SCHEDULE II
MORTGAGE LOAN SCHEDULE
MLMT 2005-MKB2 KEYBANK MORTGAGE LOAN SCHEDULE
Loan Level
Property Level
MORTGAGE
LOAN PROPERTY
LOAN # PROPERTY NAME SELLER TYPE ADDRESS
00 Xxxxxxxx Xxx Xxxxx Xxxxxxxx Xxx Retail 000-000 X.X. Xxxxxxx 00 and 000-000 Xxxxxxxx Xxx Xxxx
16 North Main Plaza Shopping Center Key Retail 718,720,722,740,760,762,780,782,784 Main Street &
000 Xxxx Xxxxxxxxx Xxxxxx
00 Xxxxxxxx xx Main Key Multifamily 000 Xxxx Xxxxxx
27 Xxxxxxx Park Plaza Key Retail 5056 - 5076 South Xxxxxxxxx
29 Magnolia Square Shopping Center Key Retail 0000 Xxxxxx Xxxxxx Xxxx Xx. Xxxxxxxxx
00 Xxxxxxx Xxxx Xxxxxxx Key Multifamily 0000 Xxxx Xxxxx
36 Great Eastern Shopping Center Key Retail 000-000 Xxxxx Xxxxxxxx Xxxx
38 Crossroads Town Center Key Retail 000-000 Xxxx Xxxxxxxx Xxxx
40 Willow Creek Shopping Center Key Retail 0000 Xxxx Xxxxxx Xxxxx Xxxx
42 Beaverton Creek Business Park Phase V Key Industrial 2555-2815 Southwest 153rd Drive
47 Xxxxxxxxx Apartments Key Multifamily 700 Xxxxxxxxx
00 Xxxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxx 00000, 27550 & 00000 Xxxxxxx Xxxxx Xxxx
51 Porta Di Oro Apartments Key Multifamily 000 Xxxxxxxxx 00xx Xxxxxx
52 Chino Corporate Center Key Office 00000 Xxxxxx Xxxxxx
53 Milford Plaza Key Retail 00 Xxxxxx Xxxx
57 Centennial Hanford Center Phase I Key Retail 000-000 Xxxxx 00xx Xxxxxx
58 Shaker Point Apartments Key Multifamily 0000 Xxxxxx Xxxxx Xxx
59 Beachside Apartments Key Multifamily 000 Xxxxxxx X0X
60 US Storage Centers Xxxxxxx Key Self Storage 00000 Xxxx Xxxxxx
68 Walgreen's-Arvarda Key Retail 0000 Xxxxxxxxx Xxxxxxxxx
71 Walgreens - Orem Key Retail 000 Xxxxx Xxxxx Xxxxxx
77 The Hobby Lobby Store Key Retail 0000 Xxxxxxxxxxx Xxxxx
00 Xxxxx Xxxxx Xxxxxxxxxx Xxx Multifamily 0000 Xxxxx Xxxx Xxxxxx
80 Silver Springs Commons Key Retail 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx
IO MONTHLY IO ANNUAL
CUTOFF BALANCE DEBT DEBT
LOAN # CITY COUNTY STATE ZIP CODE (3/1/2005) ORIGINAL BALANCE SERVICE SERVICE
00 Xxxxx Xxxx Xxxxxx XX 00000 22,800,000.00 22,800,000.00 99,085.00 1,189,020.00
00 Xxxxxx Xxxxxxxxx XX 00000 18,456,099.90 18,500,000.00
00 Xxxxxxxxx Xxxxxxxxx XX 00000 16,825,000.00 16,825,000.00 73,636.64 883,639.65
00 Xxxxxxxx Xxxxxxxxx XX 00000 11,000,000.00 11,000,000.00 52,511.00 630,131.94
00 Xxxxx Xxxxxxxxxx XX 00000 10,265,000.00 10,265,000.00 43,754.56 525,054.75
00 Xxxxxx Xxxxxx XX 00000 9,976,347.85 10,000,000.00
36 Xxxxxxxxx Xxxxxxxx XX 00000 8,969,603.17 9,000,000.00
00 Xxxxxx Xxxxxxxxxx XX 00000 8,330,000.00 8,330,000.00 36,809.15 441,709.82
00 Xxxxxxxx Xxxxxxx XX 00000 8,240,000.00 8,240,000.00
42 Xxxxxxxxx Xxxxxxxxxx XX 00000 7,856,556.11 7,875,000.00
00 Xxxxxxxx Xxxx Xxxxxxxxx XX 00000 7,080,000.00 7,080,000.00 32,362.32 388,347.83
00 Xxxxx Xxxxxxx Xxx Xxxxxxx XX 00000 7,000,000.00 7,000,000.00
00 Xxxxx Xxxxx-Xxxx XX 00000 6,600,000.00 6,600,000.00
00 Xxxxx Xxx Xxxxxxxxxx XX 00000 6,285,244.91 6,300,000.00
00 Xxxxxxx Xxxxxxxxx XX 00000 5,991,544.86 6,000,000.00
00 Xxxxxxx Xxxxx XX 00000 5,142,671.41 5,150,000.00
00 Xxxxxxxx Xxxxxxxx XX 00000 5,000,000.00 5,000,000.00 21,925.35 263,104.17
00 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 4,987,760.00 5,000,000.00
60 Xxxxxxx Xxxxxx XX 00000 4,788,867.97 4,800,000.00
00 Xxxxxx Xxxxxxxxx XX 00000 3,872,078.99 3,880,000.00
71 Xxxx Xxxx XX 00000 3,589,357.54 3,600,000.00
77 Xxxxxxx Xxxxxxxx XX 00000 3,025,000.00 3,025,000.00 12,894.06 154,728.75
00 Xxxx Xxxxx Xxxxxxx XX 00000 2,743,506.31 2,750,000.00
80 Xxxxx Xxxxxx XX 00000 2,141,683.51 2,150,000.00
MONTHLY ANNUAL PRIMARY MASTER TRUSTEE &
P&I DEBT P&I DEBT INTEREST SERVICING SERVICING PAYING BROKER ADMIN.
LOAN # SERVICE SERVICE RATE (%) FEE RATE FEE RATE AGENT FEE STRIP RATE FEE
12 5.2150 0.03000 0.02000 0.00180 0.05180
16 104,229.91 1,250,758.92 5.4300 0.03000 0.02000 0.00180 0.05180
18 92,180.14 1,106,161.68 5.1800 0.03000 0.02000 0.00180 0.05180
27 63,495.94 761,951.28 5.6500 0.03000 0.02000 0.00180 0.05180
29 525,054.72 5.1150 0.03000 0.02000 0.00180 0.05180
33 56,465.59 677,587.08 5.4500 0.03000 0.02000 0.00180 0.05180
36 50,369.36 604,432.32 5.3700 0.03000 0.02000 0.00180 0.05000 0.10180
38 45,895.43 550,745.16 5.2300 0.03000 0.02000 0.00180 0.05180
40 44,739.06 536,868.72 5.1000 0.03000 0.02000 0.00180 0.05180
42 44,762.81 537,153.72 5.5100 0.03000 0.02000 0.00180 0.05180
47 39,800.59 477,607.08 5.4100 0.03000 0.02000 0.00180 0.05180
49 39,482.12 473,785.44 5.4400 0.03000 0.02000 0.00180 0.05180
51 36,855.30 442,263.60 5.3500 0.03000 0.02000 0.00180 0.05180
52 35,810.24 429,722.88 5.5100 0.03000 0.02000 0.00180 0.05000 0.10180
53 33,841.81 406,101.72 5.4400 0.03000 0.02000 0.00180 0.05180
57 28,758.31 345,099.72 5.3500 0.03000 0.02000 0.00180 0.05000 0.10180
58 27,424.66 329,095.92 5.1900 0.03000 0.02000 0.00180 0.05000 0.10180
59 27,579.22 330,950.64 5.2400 0.03000 0.02000 0.00180 0.05180
60 27,465.06 329,580.72 5.5700 0.03000 0.02000 0.00180 0.05000 0.10180
68 24,142.75 289,713.00 6.3500 0.03000 0.02000 0.00180 0.05180
71 23,748.10 284,977.20 6.2500 0.03000 0.02000 0.00180 0.05180
77 5.1150 0.03000 0.02000 0.00180 0.05180
78 15,545.25 186,543.00 5.4600 0.03000 0.02000 0.00180 0.05180
80 13,958.04 167,496.48 6.2500 0.03000 0.02000 0.00180 0.05180
NET MORTGAGE ACCRUAL REMAINING MATURITY/ARD AMORT REMAINING
LOAN # INTEREST RATE TYPE TERM TERM DATE TERM AMORT TERM TITLE TYPE ARD (Y/N)
12 5.16320 30/360 60 58 1/1/2010 0 0 Fee No
16 5.37820 Actual/360 120 118 1/1/2015 360 358 Fee No
18 5.12820 Actual/360 120 120 3/1/2015 360 360 Fee No
27 5.59820 Actual/360 120 117 12/1/2014 360 360 Fee No
29 5.06320 30/360 60 60 3/1/2010 0 0 Fee No
33 5.39820 Actual/360 120 118 1/1/2015 360 358 Fee No
36 5.26820 Actual/360 84 81 12/1/2011 360 357 Fee Yes
38 5.17820 Actual/360 120 118 1/1/2015 360 360 Fee Yes
40 5.04820 Actual/360 60 60 3/1/2010 360 360 Fee Yes
42 5.45820 Actual/360 120 118 1/1/2015 360 358 Fee No
47 5.35820 Actual/360 120 117 12/1/2014 360 360 Fee No
49 5.38820 Actual/360 120 120 3/1/2015 360 360 Fee No
51 5.29820 Actual/360 120 120 3/1/2015 360 360 Fee No
52 5.40820 Actual/360 120 118 1/1/2015 360 358 Fee No
53 5.38820 Actual/360 120 119 2/1/2015 360 359 Leasehold Yes
57 5.24820 Actual/360 120 119 2/1/2015 360 359 Fee No
58 5.08820 Actual/360 121 121 4/1/2015 360 360 Fee No
59 5.18820 Actual/360 120 118 1/1/2015 360 358 Fee No
60 5.46820 Actual/360 120 118 1/1/2015 360 358 Fee No
68 6.29820 Actual/360 120 118 1/1/2015 360 358 Fee Yes
71 6.19820 Actual/360 120 118 1/1/2015 300 298 Fee Yes
77 5.06320 30/360 60 59 2/1/2010 0 0 Fee No
78 5.40820 Actual/360 120 118 1/1/2015 360 358 Fee No
80 6.19820 Actual/360 120 117 12/1/2014 312 309 Fee No
ENVIRONMENTAL ENVIRONMENTAL
LOAN # ARD STEP UP (%) REPORT TYPE INSURANCE (Y/N)
12 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No
33 Phase I No
36 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I No
38 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I No
40 Greater of: (i) Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No
52 Phase I No
53 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X Xx
00 Xxxxx X No
68 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I No
71 Greater of: (i) Initial Interest Rate plus 2% or (ii) Treasury Rate plus 2%. Phase I No
77 Phase I Xx
00 Xxxxx X Xx
00 Xxxxx X No
CROSS- CROSS- DEFEASANCE LETTER OF LOCKBOX UPFRONT ENG.
LOAN # DEFAULTED COLLATERALIZED ALLOWED CREDIT IN-PLACE HOLDBACK AMT RESERVE
12 No No No
16 Yes No No
18 No No No
27 Yes No No
29 No No No
33 Yes No No
36 Yes No No 35,375.00
38 Yes No No $520,000.00
40 Yes No No 53,312.50
42 Yes No No
47 Yes No No
49 No No No $750,000.00
51 Yes No No
52 Yes No No
53 Yes No No
57 Yes No No
58 Yes No No
59 Yes No No
60 Yes No No
68 No No No
71 No No No
77 No No No
78 Yes No No
80 No No No
UPFRONT UPFRONT
UPFRONT CAPEX UPFRONT ENVIR. UPFRONT TI/LC UPFRONT RE INSURANCE OTHER
LOAN # RESERVES RESERVE RESERVE TAX RESERVE RESERVE RESERVE UPFRONT OTHER DESCRIPTION
12
16 2,628.50 59,246.21 36,273.30
18 3,300.00 1,125.00 43,807.11 14,075.55
27 322,500.00 2,500.00 186,778.03 19,521.60 27,373.00 Tenant Estoppel Escrow
29
33 4,400.00 137,097.28 22,458.98
36 3,526.83 547,200.00 3,333.33 87,129.97
38 4,634.44
40 1,196.00 100,000.00 4,500.00 32,881.60 4,858.00
42 30,000.00 6,700.00 26,712.85 3,789.28
47 178,775.31 34,650.00
49 750,000.00 10,906.35
51 78,885.78 10,840.72
52 1,149.00 2,084.00 19,816.83 1,641.32
53 2,000.00 293,750.00 3,337.00 11,400.42 5,579.70
57 370.00 1,600.00 4,305.53
58 1,400.00 26,257.09 6,335.00
59 688.00 9,100.00 1,801.41
60 854.00 14,849.73 5,221.44
68 181.17
71 185.25
77
78 1,036.00 4,290.54 2,482.03
80
MONTHLY MONTHLY MONTHLY MONTHLY RE MONTHLY MONTHLY
CAPEX ENVIR. TI/LC TAX INSURANCE OTHER OTHER MONTH TOTAL UNIT OF GRACE LOAN
LOAN # RESERVE RESERVE RESERVE RESERVE RESERVE RESERVE DESCRIPTION SF/UNITS MEASURE PERIOD GROUP
12 205,230 SF 5 1
16 2,628.50 14,811.55 4,534.16 217,028 SF 5 1
18 3,300.00 15,332.49 5,078.83 144 Units 5 1
27 2,500.00 26,682.58 1,626.80 104,976 SF 5 1
29 116,146 SF 5 1
33 4,400.00 19,585.32 4,203.94 263 Units 5 2
36 3,526.83 3,333.33 12,447.14 147,778 SF 5 1
38 2,573.95 1,480.38 36,795 SF 5 1
40 1,196.00 4,500.00 6,576.32 1,214.50 163,478 SF 5 1
42 6,700.00 8,904.29 1,894.64 82,742 SF 5 1
47 2,750.00 19,474.19 3,675.00 132 Units 5 2
49 4,590.06 908.86 28,273 SF 5 1
51 19,721.44 5,814.11 89 Units 5 2
52 1,149.00 2,084.00 4,954.21 1,641.33 58,642 SF 5 1
53 2,000.00 3,337.00 15,070.95 1,859.90 160,196 SF 5 1
57 370.00 1,600.00 717.59 29,578 SF 5 1
58 1,400.00 1,067.36 1,583.75 84 Units 5 2
59 688.00 4,550.00 1,801.41 55 Units 5 1
60 854.00 3,712.43 522.14 68,365 SF 5 1
68 181.17 14,490 SF 5 1
71 185.25 13,650 SF 5 1
77 60,000 SF 5 1
78 1,036.00 1,766.69 1,241.01 48 Units 5 2
80 15,058 SF 5 1
