MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of December 1,
1997 (the "Agreement"), is between Xxxxxxx Xxxxx Mortgage Investors, Inc., a
Delaware corporation (the "Company"), and GE Capital Access, Inc. (the "Mortgage
Loan Seller"). The Mortgage Loan Seller agrees to sell, and the Company agrees
to purchase, the mortgage loans (the "Mortgage Loans") described in, and set
forth in, the Mortgage Loan Schedule attached as Exhibit A to this Agreement
(the "Mortgage Loan Schedule"). The Company intends to deposit the Mortgage
Loans and other assets into a trust (the "Trust") and cause the creation of a
series of certificates to be known as Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1997-C2 (the "Certificates"),
evidencing beneficial ownership interests in the Mortgage Loans and other assets
(including, without limitation, other mortgage loans), under a Pooling and
Servicing Agreement, to be dated as of December 1, 1997 (the "Pooling and
Servicing Agreement"), among the Company, as depositor, GE Capital Loan
Services, Inc., as master servicer (the "Servicer"), CRIIMI MAE Services Limited
Partnership, as special servicer (the "Special Servicer"), and State Street Bank
and Trust Company, as trustee (the "Trustee"). Capitalized terms used but not
otherwise defined herein shall have the respective meanings given to them in the
Pooling and Servicing Agreement without giving effect to any amendment thereto
unless the Mortgage Loan Seller has given its consent to such amendment in
writing and signed by a duly authorized officer of the Mortgage Loan Seller.
1. Purchase Price; Purchase and Sale. The purchase price (the "Purchase
Price") for the Mortgage Loans shall be determined in accordance with the letter
agreement, dated as of December 23, 1997, between the Company and the Mortgage
Loan Seller. The Purchase Price amount shall be payable by the Company to the
Mortgage Loan Seller on December 23, 1997 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date") in immediately
available funds. The closing for the purchase and sale of the Mortgage Loans
shall take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. (New York time), on the Closing
Date.
On the Closing Date, the Mortgage Loan Seller shall sell, transfer, assign,
set over and convey to the Company, without recourse, and the Company shall
purchase, all the right, title and interest of the Mortgage Loan Seller in and
to the Mortgage Loans, including all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date, together with all of the
Mortgage Loan Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance policies. The Company
hereby directs the Mortgage Loan Seller, and the Mortgage Loan Seller hereby
agrees, to deliver to the Trustee all documents, instruments and agreements
required to be delivered by the Company to the Trustee under Section 2.01 of the
Pooling and Servicing Agreement, and meeting all the requirements of such
Section 2.01 and such other documents, instruments and agreements as the Company
or the Trustee shall reasonably request. The Mortgage Loan Schedule may be
amended to reflect the actual Mortgage Loans.
2. Representations and Warranties. (a) The Mortgage Loan Seller hereby
represents and warrants to the Company as of the date hereof and as of Closing
Date that:
(i) The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its assets and
conduct its business, is duly qualified as a foreign corporation in good
standing in all jurisdictions in which the ownership or lease of its
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the value of the Mortgage Loans and the ability of the Mortgage
Loan Seller to perform its obligations hereunder, and the Mortgage Loan
Seller has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the corporate
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign, transfer, set over and convey the
Mortgage Loans in accordance with this Agreement;
(ii) This Agreement has been duly authorized, executed and delivered
by the Mortgage Loan Seller and assuming its due authorization, execution
and delivery by the Company, will constitute a legal, valid and binding
obligation of the Mortgage Loan Seller, enforceable against the Mortgage
Loan Seller in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors'
rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at
law), or by public policy considerations underlying the securities laws, to
the extent that such public policy considerations limit the enforceability
of the provisions of this Agreement which purport to provide
indemnification from liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Mortgage
Loan Seller and the performance of its obligations hereunder (1) will not
conflict with any provision of any law or regulation to which the Mortgage
Loan Seller is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
any of the Mortgage Loan Seller's organizational documents or any agreement
or instrument to which the Mortgage Loan Seller is a party or by which it
is bound, or any order or decree applicable to the Mortgage Loan Seller, or
result in the creation or imposition of any lien on any of the Mortgage
Loan Seller's assets or property, in each case which would
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materially and adversely affect the ability of the Mortgage Loan Seller to
carry out the transactions contemplated by this Agreement; and (2) does not
require the consent of any third party or such consent has been obtained.
(iv) There is no action, suit, proceeding or investigation pending or,
to the knowledge of the Mortgage Loan Seller, threatened against the
Mortgage Loan Seller in any court or by or before any other governmental
agency or instrumentality which, in the Mortgage Loan Seller's good faith
and reasonable judgment, would materially and adversely affect the validity
of the Mortgage Loans or the ability of the Mortgage Loan Seller to enter
into, and carry out the transactions contemplated by, this Agreement;
(v) The Mortgage Loan 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 governmental agency, which default might have
consequences that, in the Mortgage Loan Seller's good faith and reasonable
judgment, would materially and adversely affect the condition (financial or
other) or operations of the Mortgage Loan Seller or its properties or might
have consequences that would materially and adversely affect its
performance hereunder;
(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 Mortgage Loan Seller of or compliance by the Mortgage
Loan Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement, other than those which have been obtained
by the Mortgage Loan Seller;
(vii) The transfer, assignment and conveyance of the Mortgage Loans by
the Mortgage Loan Seller to the Company is not subject to bulk transfer
laws or any similar statutory provisions in effect in any applicable
jurisdiction; and
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Mortgage Loan Seller will report the
transfer of the Mortgage Loans to the Company as a sale of the Mortgage
Loans to the Company. The consideration received by the Mortgage Loan
Seller upon the sale of the Mortgage Loans to the Company will constitute
reasonably equivalent value and fair consideration for the Mortgage Loans.
The Mortgage Loan 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 Company. The Mortgage Loan Seller is not selling the Mortgage Loans to
the Company with any intent
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to hinder, delay or defraud any of the creditors of the Mortgage Loan
Seller.
(b) The Mortgage Loan Seller hereby represents and warrants with respect to
each Mortgage Loan that, as of the date specified below or, if no such date is
specified, as of the Closing Date:
(i) Immediately prior to the sale, transfer and assignment of the
Mortgage Loans to the Company, the Mortgage Loan Seller had good and
marketable title to, and was the sole owner of, each Mortgage Loan;
(ii) The Mortgage Loan Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges or security interests of
any nature encumbering such Mortgage Loan, and none of the Mortgage Note,
the Mortgage or any other related loan document prohibits such transfer;
(iii) Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed in connection with such Mortgage Loan is,
a valid and binding obligation of the related Mortgagor, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and any lost note affidavit included in the
Mortgage File in lieu of a Mortgage Note does not impair the ability of the
holder thereof to enforce the terms of such Mortgage Note;
(iv) Each related Assignment of Leases, or, if none, the assignment of
leases and rents contained in the related Mortgage creates a valid,
collateral or first priority assignment of, or a valid first priority
security interest in, the right to receive all payments due under the
related leases, and no other person owns any interest therein superior to
or of equal priority with the interest created under such assignment;
(v) Each related assignment of Mortgage from the Mortgage Loan Seller
to the Trustee and any related assignment of Assignment of Leases, if any,
and assignment of any other agreement executed in connection with such
Mortgage Loan, from the Mortgage Loan Seller to the Trustee constitutes the
legal, valid and binding assignment from the Mortgage Loan Seller to the
Trustee, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership, moratorium or other
laws relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law);
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(vi) Since origination, such Mortgage Loan has not been modified,
altered, satisfied, canceled, subordinated or rescinded, except, in each of
the foregoing instances, by written instruments that are a part of the
related Mortgage File, recorded in the applicable public recording office
if necessary to maintain the priority of the lien of the related Mortgage
and security agreements and delivered to the Company, and no material
portion of the related Mortgaged Property has been released from the lien
of the related Mortgage, in each case, in any manner which materially and
adversely affects the value of the Mortgage Loan or materially interferes
with the security intended to be provided by such Mortgage, and, except
with respect to those Mortgage Loans listed on Schedule 1 attached hereto
which permit defeasance, the terms of the related Mortgage do not provide
for release of any portion of the Mortgaged Property from the lien of the
Mortgage in any manner which materially and adversely affects the security
provided by the Mortgaged Property;
(vii) Each related Mortgage is a valid first lien on the related
Mortgaged Property (subject to the matters described in clause (viii)
below), and such Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the lien of the
related Mortgage, except those which are insured against by a lender's
title insurance policy (as described in clause (viii) below);
(viii) The lien of each related Mortgage as a first priority lien in
the outstanding principal amount of such Mortgage Loan (as set forth on the
Mortgage Loan Schedule) after all advances of principal is insured by an
ALTA lender's title insurance policy (or a binding commitment therefor), or
its equivalent as adopted in the applicable jurisdiction, insuring the
Mortgage Loan Seller, its successors and assigns, subject only to (a) the
lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet due and payable, (b) covenants, conditions
and restrictions, rights of way, easements and other matters of public
record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability to
pay its obligations when they become due or materially and adversely
affects the value of the Mortgaged Property and (c) the exceptions (general
and specific) set forth in such policy, none of which, individually or in
the aggregate, materially interferes with the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations when they become due or materially and adversely affects the
value of the Mortgaged Property; the original holder of the Mortgage and/or
its successor or assigns is the sole named insured of such policy; such
policy is assignable to the Company and the Trustee without the consent of
or any notification to
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the insurer, and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been made under
such policy and the Mortgage Loan Seller has not done anything, by act or
omission, and the Mortgage Loan Seller has no knowledge of any matter,
which would impair or diminish the coverage of such policy;
(ix) The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder and the Mortgage
Loan Seller covenants that it will not make any future advances under the
Mortgage Loan to the related Mortgagor;
(x) There is no proceeding pending, or to our knowledge, threatened,
for the total or partial condemnation of all or any material portion of
such Mortgaged Property, and, to the Mortgage Loan Seller's knowledge, each
related Mortgaged Property is free and clear of any material damage that
would affect materially and adversely the value of such Mortgaged Property
as security for the Mortgage Loan;
(xi) The related Mortgagor has represented to the Mortgagee that, as
of the date of origination of such Mortgage Loan, and, to the Mortgage Loan
Seller's knowledge, such Mortgagor and the lessee and/or operator of the
related Mortgaged Property was in possession of all material licenses,
permits and other authorizations necessary and required by all applicable
laws for the conduct of its business and all such licenses, permits and
authorizations were valid and in full force and effect;
(xii) Each Mortgage Loan does not have a shared appreciation feature,
other contingent interest feature or, except with respect to those Mortgage
Loans listed on Schedule 2 attached hereto (the "ARD Loans") which provide
for hyper-amortization, a negative amortization feature;
(xiii) Each Mortgage Loan is a whole loan and no other party holds a
participation interest in the Mortgage Loan;
(xiv) The Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of each Mortgage Loan complied as of the
date of origination with, or such Mortgage Loan is exempt from, applicable
state or federal laws, regulations and other requirements pertaining to
usury; any and all other requirements of any federal, state or local laws,
including, without limitation, truth-in-lending, real estate settlement
procedures, equal credit opportunity or disclosure laws, applicable to each
Mortgage Loan have been complied with as of the date of origination of such
Mortgage Loan;
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(xv) All taxes and governmental assessments which would be a lien on
the Property and that prior to the Cut-off Date became due and owing in
respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established;
(xvi) All escrow deposits and payments required pursuant to the
Mortgage Loan are in the possession, or under the control, of the Mortgage
Loan Seller or its agent and all amounts required to be deposited by the
Borrower under the Loan Documents as of the date hereof have been deposited
and all such escrows and deposits have been conveyed by the Mortgage Loan
Seller to the Company and identified as such with appropriate detail;
(xvii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy in an amount not less than the lesser of
(A) the outstanding principal balance of the Mortgage Loan and (B) the
replacement cost, and in all events the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged
Property; each related Mortgaged Property is also covered by business
interruption insurance (or loss of rents insurance) and comprehensive
general liability insurance in amounts generally required by institutional
lenders for similar properties; all premiums on such insurance policies
required to be paid as of the date hereof have been paid; such insurance
policies require prior notice to the insured and to the Mortgagee of
termination or cancellation, and no such notice has been received; each
related Mortgage or loan agreement obligates the related Mortgagor to
maintain a fire and extended perils insurance and, at such Mortgagor's
failure to do so, authorizes the Mortgagee to maintain such insurance at
the Mortgagor's cost and expense and to seek reimbursement therefor from
such Mortgagor;
(xviii) Each Mortgage provides that any insurance proceeds in respect
of a casualty, other than business interruption/rental income insurance,
and any condemnation awards, will be applied either to the repair or
restoration of the Mortgaged Property or to the repayment of the
outstanding principal balance of the Mortgage Loan;
(xix) To the Mortgage Loan Seller's knowledge, there is no material
default, breach, violation or event of acceleration existing under the
related Mortgage or the related Mortgage Note and no event (other than
payments due but not yet delinquent) which, with the passage of time or
with notice and the expiration of any grace or cure period, would and does
constitute a material default, breach, violation or event of acceleration;
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(xx) No Monthly Payment on such Mortgage Loan has been more than 30
days delinquent from the later of one year prior to the Cut-off Date, the
date of origination of such Mortgage Loan or, if applicable, the date of
acquisition by the Mortgage Loan Seller of such Mortgage Loan, through the
Cut-off Date;
(xxi) Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits
of the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or other law
affecting the right of creditors generally and the application of
principles of equity, and there is no exemption available to the Mortgagor
which would interfere with such right to foreclose;
(xxii) A Phase I Environmental Site Assessment was performed with
respect to the related Mortgaged Property. Such Phase I Environmental Site
Assessment was performed within twelve (12) months prior to the respective
dates of origination of the related Mortgage Loan. A report of such Phase I
Environmental Site Assessment has been delivered to the Company, and the
Mortgage Loan Seller (or its affiliate that originated the Mortgage Loan),
having made no independent inquiry other than reviewing such report, has no
knowledge of any material and adverse environmental condition or
circumstance affecting the related Mortgaged Property that was not
disclosed in such report. To the extent any such condition or circumstance
was disclosed, either (a) there has been escrowed an amount of money
considered sufficient by the Mortgage Loan Seller, based upon the related
environmental reports, to cure and remedy such condition or circumstance as
recommended in the Phase I or, where applicable, Phase II Environmental
Site Assessment or (b) an operating and maintenance program has been
required of Mortgagor or (c) such condition has been cured or remedied. The
Mortgage Loan Seller has received no notice of any other such condition or
circumstance. In each Mortgage, the related Mortgagor represented and
warranted that it will not use or cause or permit to exist on the related
Mortgaged Property any hazardous materials in any manner that violates
federal, state or local laws, ordinances, regulations, orders or directives
relating to hazardous materials. In each Mortgage, the Mortgagor
represented and warranted that no hazardous materials exist on the related
Mortgaged Property in any manner that violates federal, state or local
laws, ordinances, regulations, orders or directives relating to hazardous
materials; provided, however, that in certain instances this representation
is limited to the best of Mortgagor's knowledge. The Mortgage Loan
generally requires (subject to exceptions which would not be viewed as
commercially unreasonable by a prudent institutional lender) that the
Mortgagor will defend and hold the holder of the
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Mortgage and its successors and/or assigns harmless from and against any
and all losses, liabilities, damages, injuries, penalties, fines, expenses,
and claims of any kind whatsoever (including attorney's fees and costs)
paid, incurred, or suffered by, or asserted against, any such party
resulting from a breach of any representation, warranty or covenant
relating to environmental matters given by the Mortgagor under the related
Mortgage except for those resulting from gross negligence or willful
misconduct by the holder of the Mortgage or those which are initially
placed on, in or under the Mortgaged Property after foreclosure or other
taking of title to the Mortgaged Property by the holder of the Mortgage;
(xxiii) Each related Mortgage or loan agreement contains provisions
for the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of the Mortgage
or loan agreement, as applicable, the related Mortgaged Property, or any
controlling interest therein, is directly or indirectly transferred or
sold, or encumbered in connection with subordinate financing (other than
any existing subordinate debt) and each related Mortgage or loan agreement
prohibits the pledge or encumbrance of the Mortgaged Property without the
consent of the holder of the Mortgage Loan;
(xxiv) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"). For this purpose, Section 860G(a)(3) of the Code
shall be applied without regard to the rule contained in Treasury
Regulations Section 1.860G-2(f)(2) which treats a defective mortgage loan
as a "qualified mortgage" under certain circumstances. Accordingly, the
Mortgage Loan Seller represents and warrants that each Mortgage Loan is
directly secured by a Mortgage on a commercial property or a multifamily
residential property, and either (1) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property and such interest in real property was the sole
security for such Mortgage Loan as of the Testing Date (as defined below),
or (2) the fair market value of the interest in real property which secures
such Mortgage Loan was at least equal to 80% of the principal amount of the
Mortgage Loan (a) as of the Testing Date, or (b) as of the Closing Date.
For purposes of the previous sentence, (1) the fair market value of the
referenced interest in real property shall first be reduced by (a) the
amount of any lien on such interest in real property that is senior to the
Mortgage Loan, and (b) a proportionate amount of any lien on such interest
in real property that is on a parity with the Mortgage Loan, and (2) the
Testing Date shall be the date on which the referenced Mortgage
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Loan was originated unless (a) such Mortgage Loan was modified after the
date of its origination in a manner that would cause a "significant
modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (b) such "significant modification"
did not occur at a time when such Mortgage Loan was in default or when
default with respect to such Mortgage Loan was reasonably foreseeable.
However, if the referenced Mortgage Loan has been subjected to a
"significant modification" after the date of its origination and at a time
when such Mortgage Loan was not in default or when default with respect to
such Mortgage Loan was not reasonably foreseeable, the Testing Date shall
be the date upon which the latest such "significant modification" occurred.
For this purpose the ARD Loans shall be deemed to have undergone a
"significant modification" on December 23, 1997;
(xxv) As of the Cut-off Date the Mortgage Loan Schedule is complete
and accurate in all material respects;
(xxvi) The Mortgage Loan provides that the Mortgagor is required to
provide to the Mortgagee at least annually an operating statement and such
other information as is reasonably requested by the Mortgagee;
(xxvii) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury Regulations Section
1.860G-1(b)(2);
(xxviii) The Mortgage File contains an appraisal of the related
Mortgaged Property which appraisal is signed by a qualified appraiser, who,
to the Mortgage Loan Seller's knowledge, had no interest, direct or
indirect, in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or
disapproval of the Mortgage Loan, and the appraisal and appraiser both
satisfy the requirements of Title XI of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 and the regulations promulgated
thereunder, all as in effect on the date the Mortgage Loan was originated;
(xxix) None of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses and except for
immaterial encroachment or where the same is covered by a title insurance
endorsement), and no improvements on adjoining properties materially
encroach upon such Mortgaged Property,
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or the requisite title insurance has been obtained with respect to the
foregoing;
(xxx) To the Mortgage Loan Seller's knowledge, based on the type of
due diligence customarily provided by prudent institutional commercial and
multifamily mortgage lenders, as of the date of origination of such
Mortgage Loan, and as of the Cut-off Date, each Mortgaged Property was in
material compliance with all applicable laws, zoning ordinances (including
legal non-conforming uses), rules, covenants and restrictions affecting the
construction, occupancy, use and operation of such Mortgaged Property or,
if such Mortgaged Property is not in compliance with the representations
made in this clause (xxx), such non-compliance does not materially and
adversely affect the value or operation of the Mortgaged Property;
(xxxi) With respect to the Mortgage Loans which as of the Cut-off Date
have a principal balance of at least $6 million, the related Mortgagor is
an entity which has represented and covenanted in connection with the
origination of the Mortgage Loan, or whose organizational documents
provide, that so long as the Mortgage Loan is outstanding it will be a
single-purpose entity. (For this purpose, "single-purpose entity" shall
mean a person, other than an individual, which does not engage in any
business unrelated to the related Mortgaged Property (which may include
multiple Mortgaged Properties owned by the same Borrower and securing only
Mortgage Loans conveyed hereunder as listed on Exhibit D and its (or their)
financing, does not have any material assets other than those related to
its interest in such Mortgaged Property (or Mortgaged Properties) or its
(or their) financing, or any indebtedness other than as permitted by the
related Mortgage or the other documents in the Mortgage Loan File, has its
own books and records separate and apart from any other person, and holds
itself out as being a legal entity, separate and apart from any other
person);
(xxxii) The Mortgage Loan complied, in all material respects, with all
of the terms, conditions and requirements of the Mortgage Loan Seller's
underwriting standards in effect at the time of the origination or
acquisition of such Mortgage Loan;
(xxxiii) Except as set forth on Schedule 1, to the Mortgage Loan
Seller's knowledge, no Mortgagor is a debtor in any state or federal
bankruptcy or insolvency proceeding;
(xxxiv) To the best of Mortgage Loan Seller's knowledge, as of the
Closing Date, there is no right of rescission, offset, abatement,
diminution, defense or counterclaim to the Mortgage Loan (including the
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defense of usury), nor will the operation of any of the terms of the
Mortgage Note or the Mortgage, or the exercise of any rights thereunder,
render the Mortgage Note or the Mortgage unenforceable, in whole or in part
(excluding provisions relating to default interest, yield maintenance
charges or prepayment premiums), or subject to any right of rescission,
offset, abatement, diminution, valid defense or counterclaim (including the
defense of usury or the violation of any applicable disclosure or consumer
credit laws), except in any such case as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the enforcement of creditors' rights generally or by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and no such right of rescission, offset,
abatement, diminution, defense or counterclaim has been asserted with
respect thereto;
(xxxv) In the case of any Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has been
properly designated and currently so serves and is named in the deed of
trust or has been substituted in accordance with applicable law, and no
fees or expenses are, or will become, payable to the trustee under the deed
of trust, except in connection with a trustee's sale after default by the
Mortgagor or in connection with the release of the Mortgaged Property or
related security for the Mortgage Loan following the payment of the
Mortgage Loan in full;
(xxxvi) The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the Mortgagee maintains, flood
insurance with respect to such improvements;
(xxxvii) If the Mortgaged Property is subject to any leases, the
Mortgagor is the owner and holder of the landlord's interest under any
leases and the related Mortgage or Assignment of Leases provides for the
appointment of a receiver for rents or allows the Mortgagee to enter into
possession to collect rent or provides for rents to be paid directly to
Mortgagee in the event of a default;
(xxxviii) The Mortgage Note is not secured by any collateral that is
not being transferred hereunder;
(xxxix) Each Mortgage Loan, if any, that is cross-collateralized is
cross-collateralized only with one or more other Mortgage Loans being
transferred hereunder;
(xl) The origination (or acquisition, as the case may be), servicing
and collection practices used with respect to the Mortgage Loan by the
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Mortgage Loan Seller and, to the Mortgage Loan Seller's knowledge, by any
prior holder of the Mortgage Loan, have been in all respects legal, proper
and prudent and have met customary industry standards;
(xli) No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Mortgage Loan Seller to the
Mortgagor and, to the Mortgage Loan Seller's knowledge, no funds have been
received from any person other than the Mortgagor, for or on account of
payments due on the Mortgage Note or the Mortgage;
(xlii) UCC Financing Statements have been filed and/or recorded in all
places necessary to perfect a valid security interest in all material
furniture, fixtures and equipment owned by a Mortgagor and located on each
Mortgaged Property and for which perfection is accomplished by the filing
of a UCC financing statement, and the mortgages, security agreements,
chattel mortgages or equivalent documents related to and delivered in
connection with the related Mortgage Loans establish and create a valid and
enforceable first lien and first priority security interest on such
material furniture, fixtures and equipment except as enforceability may be
limited by bankruptcy or other laws affecting creditor's rights generally
or by the application of the rules of equity;
(xliii) Except with respect to the Mortgage Loans identified on
Schedule 1 as being subject to secured subordinate debt (the "Subordinate
Debt Mortgage Loans"), as of the date of the Prospectus, to the Mortgage
Loan Seller's knowledge, the Mortgagor has no indebtedness for borrowed
money secured by the Mortgaged Property other than the Mortgage Loan. With
respect to the Subordinate Debt Mortgage Loans, the creditor (the
"Subordinate Lender") under such secured indebtedness for borrowed money
("Other Debt") of the Mortgagor has entered into a subordination agreement
with the Mortgage Loan Seller pursuant to which (A) the Subordinate Lender
has agreed to fully subordinate the Other Debt to the Mortgage Loan
(collectively, the "Senior Debt"), (B) the Subordinate Lender has agreed
not to declare a default or exercise any remedies with respect to the Other
Debt until the Senior Debt has been paid in full, and (C) such
subordination agreement is assignable to the Company and its successors and
assigns and is being assigned hereunder and is part of the Mortgage File;
(xliv) Except to the extent otherwise set forth on Schedule 1, no
Mortgage Loan is secured in whole or in part by the interest of a Borrower
as lessee under a ground lease underlying the related Mortgaged Property
unless (A)(i) the Mortgage Loan is also secured by the related fee interest
or (ii) the ground lease represents a non-essential portion of the
Mortgaged Property, and the ground lease has an original
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term (or an original term plus one or more optional renewal terms, which,
under all circumstances, may be exercised, and will be enforceable, by the
Mortgagor, or the Mortgagee if the Mortgagee acquires the related Mortgaged
Property upon foreclosure, assignment-in-lieu of foreclosure or otherwise)
that extends not less than 10 years beyond the stated maturity of the
related Mortgage Loan or (B) if the Mortgage Loan is secured by a Mortgage
constituting a valid first lien on an unencumbered interest of the Borrower
as lessee under a ground lease underlying the related Mortgaged Property,
then the Mortgage Loan Seller represents and warrants that:
(A) The ground lease (with respect to this section (xliv), the term
"ground lease" shall mean such ground lease, all amendments and
modifications thereof and any related estoppels or agreements from
ground lessor) or a memorandum regarding it has been duly recorded.
The ground lease permits the interest of the lessee to be encumbered
by the related Mortgage and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns in a
manner that would adversely affect the security provided by the
related Mortgage. There has been no material change in the terms of
such ground lease since its recordation, except by written
instruments, all of which are included in the related Mortgage File;
(B) The lessor under such ground lease has agreed in a writing included in
the related Mortgage File that the ground lease may not be amended,
modified, canceled or terminated without the prior written consent of
the Mortgagee and that any such action without such consent is not
binding on the Mortgagee, its successors or assigns, except if an
event of default occurs under the Ground Lease and notice is provided
to the Mortgagee and such default is curable by the Mortgagee, but
remains uncured beyond the applicable cure period;
(C) The ground lease has an original term (or an original term plus one or
more optional renewal terms, which, under all circumstances, may be
exercised, and will be enforceable, by the Mortgagee) that extends not
less than 10 years beyond the stated maturity of the related Mortgage
Loan;
(D) The ground lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the Mortgage other than the related
ground lessor's related fee interest and any exceptions set forth in
the related title insurance policy or opinion of title;
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(E) The ground lease is assignable to the Mortgagee and its assigns
without the consent of the lessor thereunder (or, if any such consent
is required, it has been obtained prior to the Closing Date);
(F) As of the date of origination of the Mortgage Loan, and to the
Mortgage Loan Seller's knowledge as of the Cut-off Date, the ground
lease is in full force and effect and no default has occurred, nor is
there any existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of the
ground lease;
(G) The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee
to the Mortgagee. The ground lease or ancillary agreement further
provides that no notice given is effective against the Mortgagee
unless a copy has been given to the Mortgagee in a manner described in
the ground lease or ancillary agreement;
(H) Mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease through legal proceedings, or to take
other action so long as the Mortgagee is proceeding diligently) to
cure any default under the ground lease which is curable after the
receipt of notice thereof before the lessor may terminate the ground
lease;
(I) The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender;
(J) Any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the Mortgagee or a trustee appointed
by it having the right to hold and disburse such proceeds as repair or
restoration progresses, or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued interest
(except, with respect to condemnation awards, in cases where a
different allocation would not be viewed as commercially unreasonable
by any institutional investor, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of
the outstanding principal balance of such Mortgage Loan to the market
value of the related Mortgaged Property);
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(K) Under the terms of the ground lease and the related Mortgage, any
related insurance proceeds, or condemnation award in respect of a
total or substantially total loss or taking of the related Mortgaged
Property will be applied first to the payment of the outstanding
principal balance of the Mortgage Loan, together with any accrued
interest if such proceeds have not been used to restore the premises
(except, with respect to condemnation awards, in cases where a
different allocation would not be viewed as commercially unreasonable
by any institutional investor, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of
the outstanding principal balance of such Mortgage Loan to the market
value of the related Mortgaged Property). Until the principal balance
and accrued interest are paid in full, neither the lessee nor the
lessor under the ground lease will have the option to terminate or
modify the ground lease without prior written consent of the Mortgagee
as a result of any casualty or partial condemnation, except to provide
for an abatement of the rent;
(L) Upon request, the ground lessor is required to enter into a new lease
upon termination of the Ground Lease for any reason, on substantially
similar terms and conditions as the old lease, including upon the
rejection of the lease in bankruptcy;
(M) Except as set forth on Schedule 1, the ground lease does not provide
for an increase in rental payments; and
(N) To the best of the Mortgage Loan Seller's (or its affiliates which
originated the Mortgage Loan) knowledge, the terms of the related
Ground Lease have not been waived, modified, altered, satisfied,
impaired, canceled, subordinated or rescinded in any manner which
materially interferes with the security intended to be provided by
such Mortgage.
(xlv) Based on information obtained from the related Mortgagor at the
time of origination, a list of borrowers or groups of affiliated borrowers
with multiple Mortgage Loans is attached hereto as Exhibit D and, as of the
Cut-off Date, the aggregate principal amount of any Mortgage Loan or group
of Mortgage Loans made to one borrower or group of affiliated borrowers
does not exceed $34 million;
(xlvi) No Mortgage Loan has an interest rate lower than 6.970% per
annum;
(xlvii) With respect to each Mortgage Loan listed on Schedule 1
attached hereto, which provide for hyper-amortization after the
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respective anticipated repayment date ("ARD"): (a) no Mortgage Loan
provides for payment of interest only, (b) the ARD in each case is not less
than seven (7) years from the date of origination, (c) each Mortgage Loan
provides for creation of a lockbox account pursuant to which all rents and
other income from the Property from and after the ARD shall be deposited,
which generally must become effective not later than three (3) months prior
to the ARD and in all cases must become effective by the ARD unless the
Borrower provides evidence satisfactory to the holder of the Mortgage that
a refinancing of the Mortgage Loan will occur on or about the ARD, (d)
after the ARD, excess cash flow (after payment of principal and interest at
the pre-ARD rate, escrows, budgeted operating expenses, and other expenses
approved by the holder of the Mortgage) is applied to reduction of the
principal balance of the Mortgage Loan, (e) the unavailability of
additional principal amounts in excess of the regularly scheduled principal
and interest payments (at the applicable rate prior to the ARD) is not a
default under the Mortgage Loan, and (f) the Mortgage Loan does not provide
for the removal of the property manager solely because of the occurrence of
the ARD and, if the removal of the property manager is permitted based on
debt service coverage ratio tests, the calculation of the debt service
coverage ratio is based on the initial interest rate in effect prior to the
ARD;
(xlviii) Each Mortgage Loan is nonrecourse except for certain
circumstances including fraud, misappropriation, misrepresentation and
waste; and
(xlix) Except as otherwise set forth on Schedule 1 hereto, with
respect to Mortgage Loans secured in whole or in part by the interest of
the related mortgagor under a Ground Lease and by the related fee interest,
such fee interest is subject, and subordinated of record, to the related
Mortgage, and such Mortgage does not by its terms provide that it will be
subordinated to the lien of any other mortgage or other lien upon such fee
interest.
3. Notice of Breach; Cure and Repurchase. (a) Pursuant to the Pooling and
Servicing Agreement, the Mortgage Loan Seller and the Company shall be given
notice of any Breach or Document Defect that materially and adversely affects
the value of such Mortgage Loan or the interests of the holders of the
Certificates therein.
(b) Upon notice pursuant to Section 3(a) herein, the Mortgage Loan Seller
shall, not later 90 days from the Mortgage Loan Seller's receipt of notice of
such Breach or Document Defect, if such Breach or Document Defect shall
materially and adversely affect the value of such Mortgage Loan or the interests
of the holders of the Certificates therein, cure such Document Defect or Breach,
as the case may be, in all material respects or, if such Document Defect or
Breach (other than omissions solely due to a document not having been returned
by the related recording office) cannot be cured within the periods hereinafter
set
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xxxxx, xxxxxxxxxx the affected Mortgage Loan at the applicable Repurchase Price
(as defined below); provided, however, that if such Document Defect or Breach is
capable of being cured but not within such 90-day period, such Document Defect
or Breach does not relate to any Mortgage Loan not being treated as a "qualified
mortgage" within the meaning of the REMIC Provisions, and the Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of such Document
Defect or Breach within such 90-day period, the Mortgage Loan Seller shall have
an additional 90 days to complete such cure (or failing such cure, to complete
such repurchase); provided, further, that with respect to such additional 90-day
period the Mortgage Loan 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
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that the Mortgage Loan Seller anticipates that such Document Defect or Breach
will be cured within the additional 90-day period. If the affected Mortgage Loan
is to be repurchased, Mortgage Loan Seller shall remit the Repurchase Price in
immediately available funds to the Trustee. The delivery of a binding commitment
to issue a policy of lender's title insurance in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect with respect to any Mortgage File.
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan to be
repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement without giving effect to any amendment
thereto unless the Mortgage Loan Seller has given its consent to such amendment
in writing and signed by a duly authorized officer of the Mortgage Loan Seller.
(c) Upon any repurchase of a Mortgage Loan contemplated by Section 3(b)
above, the Trustee, the Servicer and the Special Servicer shall each tender to
the Mortgage Loan Seller, all portions of the Mortgage File and other documents
pertaining to such Mortgage Loan possessed by it, and each document that
constitutes a part of the Mortgage File that was endorsed or assigned to the
Trustee shall be endorsed or assigned, as the case may be, to the Mortgage Loan
Seller.
(d) This Section 3 of this Agreement provides the sole and exclusive remedy
available to the Company, the Trustee, the Certificateholders, or the Trustee on
behalf of the Certificateholders or any other party, respecting any Document
Defect or any Breach.
(e) Subject to the terms of this Agreement, the Mortgage Loan Seller hereby
acknowledges the assignment by the Company to the Trustee, as trustee under the
Pooling and Servicing Agreement, for the benefit of the Certificateholders, of
the representations and warranties contained herein and of the obligation of the
Mortgage Loan Seller to repurchase a Mortgage Loan pursuant to this Section. The
Trustee or its designee may enforce such obligations as provided in Section 8
hereof.
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4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the Mortgage Loan Seller,
as of the date hereof (or such other date as is specified in the related
representation or warranty), as follows:
(i) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business,
is duly qualified as a foreign corporation in good standing in all
jurisdictions in which the ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
ability of the Company to perform its obligations hereunder, and the
Company has taken all necessary 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 the transactions
contemplated hereby;
(ii) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors' rights generally and to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or
at law);
(iii) The execution and delivery of this Agreement by the Company and
the performance of its obligations hereunder will not conflict with any
provision of any law or regulation to which the Company is subject, or
conflict with, result in a breach of or constitute a default under any of
the terms, conditions or provisions of any of the Company's organizational
documents or any agreement or instrument to which the Company is a party or
by which it is bound, or any law, rule, regulation, judgment, writ,
injunction, order or decree applicable to the Company, or result in the
creation or imposition of any lien on any of the Company's assets or
property, in each case which would materially and adversely affect the
ability of the Company to carry out the transactions contemplated by this
Agreement;
(iv) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Company, threatened against the Company 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
-19-
of the Company contemplated herein, or which would be likely to impair
materially the ability of the Company to perform under the terms of this
Agreement;
(v) The Company is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Company or its properties or might have
consequences that would materially and adversely affect its performance
hereunder;
(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 Company of or compliance by the Company with this
Agreement or the consummation of the transactions contemplated by this
Agreement other than those that have been obtained by the Company; and
(vii) Under GAAP and for federal income tax purposes, the Company will
report the transfer of the Mortgage Loans by the Mortgage Loan Seller to
the Company as a sale of the Mortgage Loans to the Company.
5. Company's Conditions to Closing.
The obligations of the Company under this Agreement shall be subject to the
satisfaction, on the Closing Date, or such other date specified herein, of the
following conditions:
(a) The obligations of the Mortgage Loan Seller required to be performed by
it at or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with and all of the representations and
warranties of the Mortgage Loan Seller under this Agreement shall be true and
correct in all material respects, and no event shall have occurred which, with
notice or the passage of time, or both, would constitute a material default
under this Agreement.
(b) The Company or its designee shall have received all of the following
closing documents, in such forms as are agreed upon and acceptable to the
Company and in form and substance satisfactory to the Company, the Underwriters
and their respective counsel, duly executed by all signatories other than the
Company as required pursuant to the respective terms thereof:
(i) with respect to each Mortgage Loan, the related Mortgage File,
which Mortgage Files shall be delivered to and held by the Trustee on
behalf of the Company;
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(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller dated as
of the Closing Date, in the form attached hereto as Exhibit B;
(iv) an opinion of Mortgage Loan Seller's counsel, subject to
customary exceptions and carve-outs, in form and substance reasonably
acceptable to the Company and its counsel and the Rating Agencies, which
states in substance the opinions set forth on Exhibit C hereto, and, in
addition, an opinion delivered on the date of the Prospectus as to the
matters set forth in the last paragraph of Exhibit C hereto; and
(v) such other documents, certificates and opinions as the Company may
reasonably request to effectuate the transactions contemplated by this
Agreement.
(c) The Mortgage Loan Seller hereby agrees to furnish such other
information, documents, certificates, letters or opinions with respect to the
Mortgage Loans or itself as may be reasonably requested by the Company in order
for the Company to perform any of its obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to the Underwriting
Agreement, the Pooling and Servicing Agreement or this Agreement.
6. Indemnification and Contribution: (a) The Mortgage Loan Seller shall
indemnify and hold harmless the Company, the Underwriter, their respective
officers and directors, and each person, if any, who controls the Company or the
Underwriter within the meaning of either Section 15 of the Securities Act of
1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact relating to the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties or the Mortgage Loan Seller contained in (A) the Prospectus
Supplement and the Memorandum under the headings "Summary of the Prospectus
Supplement--The Mortgage Pool" or "Summary of the Memorandum--The Mortgage
Pool", as applicable, "Risk Factors--The Mortgage Loans" and "Description of the
Mortgage Pool" and on Annex A and Annex B to the Prospectus Supplement, the
Diskette or, insofar as they are required to be filed as part of the
Registration Statement pursuant to the No-Action Letters, any Computational
Materials or ABS Term Sheets with respect to the Registered Certificates, or in
any revision or amendment of or supplement to any of the foregoing or (B) any
items similar to Computational Materials and ABS Term Sheets forwarded to
prospective investors in the Non-Registered Certificates, or (ii) arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
but, in the case of (i) and (ii), only if and to the
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extent that any such untrue statement or alleged untrue statement or omission or
alleged omission (I) arises out of or is based upon an untrue statement or
omission with respect to the Mortgage Loans, the related Mortgagors or the
related Mortgaged Properties contained in the Master Tape (it being herein
acknowledged that the Master Tape was used to prepare the Prospectus Supplement
including without limitation Annex A thereto, the Memorandum, the Diskette, the
Computational Materials and ABS Term Sheets with respect to the Registered
Certificates and any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates),
(II) is contained in the information regarding the Mortgage Loans, the related
Mortgagor, the related Mortgaged Property or the Mortgage Loan Seller set forth
in the Prospectus Supplement and the Memorandum under the headings "Summary of
the Prospectus Supplement--The Mortgage Pool" or "Summary of the Memorandum--The
Mortgage Pool", as applicable, "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Pool" or on Annex A to the Prospectus Supplement;
provided that the foregoing were provided to the Mortgage Loan Seller for its
review, or (III) arises out of or is based upon a breach of the representations
and warranties of the Mortgage Loan Seller set forth in or made pursuant to
Section 2 (such representations and warranties, together with the information
described in the preceding clauses I and II, the "Mortgage Loan Seller
Information"); provided that the indemnification provided by this Section 6
shall not apply to the extent that such untrue statement or omission was made as
a result of an error in (x) the manipulation of, or (y) any calculations based
upon, or (z) any aggregation (other than an aggregation made in the Master Tape
by the Mortgage Loan Seller) of, the information regarding the Mortgage Loans,
the related Mortgagor, the related Mortgaged Property or the Mortgage Loan
Seller set forth in the Master Tape and Annex A to the Prospectus Supplement,
including without limitation the aggregation of such information with comparable
information relating to the mortgage loans conveyed to the Trust Fund by Xxxxxxx
Xxxxx Mortgage Capital Inc. (the "MLMC Mortgage Loans"). This indemnity
agreement will be in addition to any liability which the Mortgage Loan Seller
may otherwise have.
For purposes of this Agreement, "Registration Statement" shall mean the
registration statement No. 333-01704 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated December 9,
1997, as supplemented by the prospectus supplement dated December 18, 1997 (the
"Prospectus Supplement"), relating to the Registered Certificates, including all
annexes thereto; "Memorandum" shall mean the private placement memorandum dated
December 18, 1997, relating to the Non-Registered Certificates; "Registered
Certificates" shall mean the Class A-1, Class A-2, Class B, Class C, Class D,
Class E and Class IO Certificates; "Non-Registered Certificates" shall mean the
Certificates other than the Registered Certificates; "Computational Materials"
shall have the meaning assigned thereto in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Xxxxxx, Peabody Acceptance Corporation
I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto
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in the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and, together with the Xxxxxx letters, the "No-Action Letters");
"Diskette" shall mean the diskette attached to each of the Prospectus and the
Memorandum; and "Master Tape" shall mean the compilation of information and data
regarding the MLMC Mortgage Loans and the Mortgage Loans covered by the
Independent Accountants' Report on Applying Agreed-Upon Procedures dated
December 18, 1997 and rendered by Deloitte & Touche LLP (a "hard copy" of which
Master Tape was initialed on behalf of the Mortgage Loan Seller and the
Purchaser).
(b) The Company shall indemnify and hold harmless the Mortgage Loan Seller,
its directors, officers, employees and agents, and each person, if any, who
controls the Mortgage Loan Seller within the meaning of either the 1933 Act or
the 1934 Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus, the
Memorandum, the Diskette, any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates or any items similar to Computational
Materials or ABS Term Sheets forwarded to the prospective investors in the
Non-Registered Certificates, or in any revision or amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, except to the extent such untrue
statement, alleged untrue statement, omission or alleged omission is contained
in the Mortgage Loan Seller Information. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under this Section 6, except to the extent that it has been prejudiced in any
material respect, or from any liability which it may have, otherwise than under
this Section 6. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party or parties shall have
reasonably concluded that there may be legal defenses available to it or them
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying party
to such indemnified party of its
-23-
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable to such indemnified
party for legal or other expenses incurred by the indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with one local counsel, if applicable),
approved by the Company in the case of subsection (a), representing the
indemnified parties under subsection (a) of this Section 6 who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable in accordance with its terms to an indemnified party under
this Section 6, then the Mortgage Loan Seller and the Company shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above, in such proportion as is appropriate to reflect the relative fault of the
Mortgage Loan Seller on the one hand and the Company on the other in connection
with the statement or omission that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Mortgage Loan Seller or the Company and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Mortgage Loan Seller and the Company agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were to be determined by per capita allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (d) subject
to the limitations therein provided under subsection (c). No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not also guilty of
such fraudulent misrepresentation.
7. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Company, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at World Financial Center, New
York, New York 10281, attention: Xxxxx X. Xxxxxxxx, fax number: (000) 000-0000,
or, if sent to the Mortgage Loan Seller, will be mailed, hand delivered,
couriered or sent by facsimile transmission to it at 292
-00-
Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, attention: Xxxxxxx X. Xxxxxxx, fax
number: (000) 000-0000.
8. Trust as Beneficiary. The representations, warranties and agreements
made by the Mortgage Loan Seller in this Agreement are made for the benefit of,
and, to the extent they are assigned by the Company to the Trustee under the
Pooling and Servicing Agreement, may be enforced by or on behalf of, the
Trustee, the Servicer or the Special Servicer, as provided in the Pooling and
Servicing Agreement, to the same extent that the Company has rights against the
Mortgage Loan Seller under this Agreement in respect of representations,
warranties and agreements made by the Mortgage Loan Seller herein.
9. Miscellaneous. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the same instrument. This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns, and no other person will have any
right or obligation hereunder, other than as provided herein.
10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in
certificates of officers of the Mortgage Loan Seller and the Company submitted
pursuant hereto, shall remain operative and in full force and effect and shall
survive transfer and sale of the Mortgage Loans to the Company and by the
Company to the Trustee notwithstanding any language to the contrary contained in
any endorsement of any Mortgage Loan.
11. Severability. If any provision of this Agreement shall be prohibited or
invalid under applicable law, this Agreement shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
12. Further Assurances. The Mortgage Loan Seller and the Company agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
13. Amendments. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated except by a writing signed by a duly authorized
officer of the party against whom enforcement of such change, waiver, discharge
or termination is sought to be enforced. This Agreement may not be changed or
waived in any manner which would have a material adverse effect on
Certificateholders without the prior written consent of the Trustee.
[Signature page follows]
-25
IN WITNESS WHEREOF, the Company and the Mortgage Loan Seller have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.
GE CAPITAL ACCESS, INC.
By: /s/ XXXXXX XXXXXX
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
-26-
EXHIBIT A
MLMI 1997-C2
Mortgage Loan Schedule--GE Capital
Control
Number Property Name Address City State
--------------------------------------------------------------------------------------------------------------------------------
1 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxx XX
2 A-1 Self Storage 000 00xx Xxxxxx Xxxxxx Xxxx XX
3 All Aboard - San Francisco 0000 Xxxxxx Xxxxxx Xxx Xxxxxxxxx XX
4 All Aboard - San Xxxxx 0000 Xxxxxxx Xxxx. Xxx Xxxxx XX
5 All Aboard - Sunnyvale 000 Xxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx XX
6 All Aboard Self Storage - Anaheim I 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX
7 All Aboard-Northridge/Concord/N.Hollywood Xxxxxxx Xxxxxxx XX
0 Xxxxx Xxxxx 0000 Xxxxxxxx Xxxx. Xx Xxxxx XX
9 American Self Storage 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxx XX
00 Xxx Xxxxxx Xxxxx Xxxxxxxxxx 00000 Xxxxx Xxxxx Xxxxx XX
11 Bonaventure MHP 00000 X. 0xx Xxxxxx Xxxxxxx XX
00 Xxxxxxx Xxxxx Self Storage 0000 Xxxx Xxxx Xxxxxxx XX
00 Xxxxxxx Xxxxxx 0000-0000 Xxxxxxx Xxxxx Xxxxxxxxx XX
14 Canyon Point Apartments 00000 Xxxxxxxxx Xxxx Xxx Xxxxxxx XX
16 Cheron Village 00000 XX 0xx Xxxxx Xxxxx XX
00 Xxxxxx Xxxxx Xxxxx 0000 Xxxxxxxx Xxxx Xxxxxx XX
00 Xxxxxx Xxxxx Xxxxxxxxxx 0000 Xxxxxx Xxxx. Xxxxxxx XX
00 Xxxxxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxxxxxx Bivd. Jessup MD
00 Xxxxxxxxx - Xxxxxxxxx 00 Xxxxx Xxxxxx Xxxxxxxxx XX
21 CVS Pharmacy 0000 Xxxx Xxxxxx Xxxx Irmo (Columbia) SC
22 Cypress Pointe Apartments 0000 Xxx Xxx Xxxxx Xxxxxxx XX
00 Xxxxxxx Xxxxx 0000 X. Xxxxxxx Xxxx. Xxx Xxxxx XX
00 Xxx Xxxx Xxxxxxx 0000 Xxxxx Xxxxxxx Xxxxxxxxxxx XX
26 Dip N Donut Plaza 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxx XX
27 Dogwood Lakes Apartments 0000 Xxxxxxx 0 Xxxxx Xxxxxx XX
28 Dover Farms Apartments 0000 Xxxxxxxx Xxxx Xxxxx Xxxxxxxx XX
29 Doylestown Shpg Cntr 000 Xxxxx Xxxx Xxxxxx Xxxxxxxxxx XX
30 Eugene Mini Storage 0000 X. 00xx Xxxxxx Xxxxxx XX
31 Fairfield Inn - Jacksonville 0000 Xxxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxxx XX
32 Federal Express Building 00000 Xxxxxxx Xxxxxx Xxxxxxxxx XX
00 Xxxxxxx Xxxxxxxxxx 0000 X. Xxxxx Xx. and 0000 X. Xxxxxxxx Xxx. Xxx Xxxxx XX
34 Fountain Park Shopping Center 0000 Xxxxx Xx @ Xxxxx Xx. Columbus GA
35 Free State Mall 15528 Annapolis Road Bowie MD
00 X.X. Xxxxxxxxx Xxxxxx (xxx Xx Xxxxxx Xxxx) 1053 - 0000 Xx Xxxxxx Xxxx Xxxxxxxxx XX
37 Gateway Medical Center 000 Xxxxxxx Xxxxxx Xxx Xxx Xxxxx XX
38 Gazebo Apartments 0000 X. 00xx Xxxxxxx Xxxxxxxx XX
39 Glasgow Mobile Home Park 000 Xxxxxxx Xxxxx Xxxxxx DE
40 Grandview Shopping Center 11902-11906 S. Blue Ridge Blvd. Grandview MO
41 Halcyon Village Shopping Center 0000 Xxxxxx Xxxx Xxxxxxxxxx XX
42 Hampton Inn - Allentown 0000 Xxxxxxx Xxx Xxxxxxxxx XX
00 Xxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxxxx Xxxxxx Dr. Mt. Pleasant (Charleston) SC
00 Xxxxxxxxx Xxxxxx 1690 - 0000 Xxxxxx Xxxx Xxxxxxxxxxx XX
48 Hidden Lake Apartments 0000 000xx Xxxxxx XX Xxxxxxxx XX
49 Xxxx Club 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx XX
50 Kroger Woodforest Shopping Center 00000 XX 00 Xxxx Xxxxxxx XX
51 La Casita Mobile Home Park 000 Xxxx XxXxxxxxx Xxxx Xxxx XX
52 Lake West Medical Cntr 00000 Xxxxxx Xxxxxx Xxxxxxxxxx XX
00 Xxxxxxxxx Xxxx Self Storage 000 Xxxxx Xxxxx Xxxx Xxxxxxxxx Xxxx XX
00 Xxxxxxxxxx Xxxxx 00000 Xxxxxxxx Xxxx Xx. Xxxxxxxxxx XX
00 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxxxx Xxxx Xxxxxxxx XX
00 Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxx Xxxxxxx XX
00 Xxxxxx Xxxxx 0000 X Xxxx Xxx Xxxx. Xxxxxxxxxx XX
60 Metro Center II 000 Xxxxx Xxxxx Xxxxx Xxxxxx XX
00 Xxx-Xxx Xxxxx 000xx and Cicero Midlothian IL
62 Midtown Mini Storage 0000 Xxxxx Xxxxxx Xxx Xxxxx XX
63 Northlake Tower Festival 0000-0000 XxXxxxx Xxxx Xxxxxx XX
00 Xxx Xxxx Xxxxxxx 000 Xxxx Xxxx Xxxx & 00 Xxxxxx Xxxx Xxxxxxxx XX
65 Pack Rat Charleston 000 Xxxxxxx Xxxxx Xxxx. Xx. Xxxxxxxx XX
66 Pack Rat North 0000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxxxxxxx XX
67 Pack Rat Summerville 0000 Xxx Xxxxxxx Xxxx Xxxxxxxxxxx XX
68 Park Chateau 000 Xxxxxxx Xxxxx, XX Xxxxxxxxxx XX
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxx. Xxxx Xxxx Xxxxx XX
70 Polo Club Apartments 00000 Xxxx Xxxx Xxxxx Xxxxxxxxxx Xxxxx XX
71 Pueblo Del Sol 0000 Xxxxxx Xxxx. Xxx Xxxxx XX
72 Raintree Apartments 0000 Xxxxxxxxxxxx Xxxxx Xxxxxxx XX
00 Xxxxx Xxxxxxx 0000 Xxxx Xxxxxx Xxxxx Xxxxxx XX
00 Xxxxxxxxx Xxxxx 000 Xxx Xxxx Xxxx Xxxxxxxxxxxxxx (Nashville) TN
75 Save & Lock 0000 X. 00xx Xxxxxx Xxxxxx XX
76 Security Portfolio IIB Various Various TX
77 Security Portfolio IIA Various Various O
78 Sentry Self Storage - Chula Vista 0000 Xxxx Xxxxxx Xxxxx Xxxxx XX
79 Sentry Self Storage - Eastgate 0000 Xxxxxxxx Xxxxx Xxx Xxxxx XX
80 Sentry Self Storage - Lakeside 00000 Xxxxxxxx Xxxxxxx 0 Xxxxxxxx XX
81 Shoppes at Xxxxxx Ranch 0000 Xxxxxxx Xx XX Xxxxxxxxxxx XX
82 Shoppes of Xxxx Xxxxx Xxxxxxxxx Xxxx & Xxxxxxxxx Xx. Xxxxxxxxx Xxxxx XX
83 Sports Authority 0000 Xxxxxx Xxxxxx X. Xxxxxxxxxx (Xxxxxxxxxx) XX
84 Stadium MHP 0000 X Xxxxxxx Xxxx Xxx Xxxxx XX
00 Xxxxx Xxxxx Xxxx xxx Xxxxx Xxxxxxx Xxxxxxx XX
87 Summer Lake 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxx XX
88 Superior Industrial Center 0000-0000 Xxxx Xxxxxxxx Xxxxxx Xxxxxxx XX
89 The Atriums 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX
90 The Bluffs at Northwoods 0000 Xxxxxxxxxxx Xxxxx Xxxxxxxx XX
91 The Links at Joneboro 0000 Xxxxx Xxxxxx Xxxxxxxxx XX
00 Xxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxx 000 & Lenape Drive New Britain PA
00 Xxxx Xxxxxx Xxxx 0000 Xxxxxxxx Xxxx Xxx Xxxx XX
94 University Creek Shopping Center 0000-0000 X. Xxxxxxxxxx Xxxxx Xxxxx XX
95 Waldorf Self Storage 0000 Xxxxxxxxxxx Xxxx (Xxxxx 0) Xxxxxxx XX
96 West Goshen Shopping Center 000 Xxxxx Xxxx @ Xxxxx 000 Xxxx Xxxxxxx XX
00 Xxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxx Xxxx MI
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx 000 Xxxxx Xxxxxxx XX
99 Westwood Village 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX
000 Xxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxx XX
000 Xxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxxx XX
000 Xxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxxx Xxxxx Xxxxx XX
Control Original Cut-off Date Monthly Gross Remaining Maturity
Number Zip Code Balance Balance Payment Rate Term Amort Date
----------------------------------------------------------------------------------------------------------------------
1 10462 9,400,000 9,353,356.91 75,311.65 8.440 127 295 07/01/2008
2 07302 3,000,000 2,988,683.02 24,623.56 8.730 116 296 08/01/2007
3 94124 4,218,000 4,218,000.00 32,109.41 7.840 120 300 12/01/2007
4 94583 3,386,000 3,386,000.00 25,775.83 7.840 120 300 12/01/2007
5 94086 6,088,000 6,075,278.73 47,230.41 8.060 118 298 10/01/2007
6 92801 1,795,000 1,791,369.36 14,164.68 8.260 118 298 10/01/2007
7 Various 8,745,000 8,726,874.59 68,133.81 8.110 118 298 10/01/2007
8 91750 6,280,000 6,272,148.77 44,298.34 7.590 118 358 10/01/2007
9 85225 1,950,000 1,947,966.19 15,115.06 8.050 119 299 11/01/2007
10 33613 4,550,000 4,544,238.25 31,939.00 7.540 298 358 10/01/2022
11 85024 2,765,000 2,761,454.36 20,753.09 8.240 118 358 10/01/2007
12 19007 1,850,000 1,848,153.70 14,673.00 8.320 119 299 11/01/2007
13 53083 3,040,000 3,040,000.00 21,778.93 7.750 156 360 12/01/2010
14 78232 5,328,000 5,320,035.24 37,181.21 7.480 118 358 10/01/2007
16 33325 5,150,000 5,146,131.80 35,798.20 7.440 119 359 11/01/2007
17 78745 2,010,000 2,007,917.22 15,633.53 8.090 83 299 11/01/2004
18 70123 15,000,000 14,987,631.66 99,493.34 6.970 119 359 11/01/2007
19 20794 3,400,000 3,400,000.00 26,174.22 7.970 120 300 12/01/2007
20 06702 8,808,000 8,808,000.00 66,240.49 7.700 120 300 12/01/2007
21 29212 1,464,000 1,461,359.36 11,802.84 7.510 239 239 11/01/2017
22 39208 7,200,000 7,189,555.06 50,985.92 7.630 118 358 10/01/2007
23 89103 1,583,000 1,577,377.57 12,396.98 8.700 114 354 06/01/2007
24 93309 2,880,000 2,876,604.89 20,891.11 7.290 119 299 11/01/2007
26 33024 1,200,000 1,197,560.93 9,445.37 8.230 118 298 10/01/2007
27 72015 9,000,000 8,981,410.39 66,684.93 7.530 298 298 10/01/2022
28 44133 11,800,000 11,783,982.91 86,255.41 7.960 118 358 10/01/2007
29 18901 14,000,000 13,982,690.20 98,859.80 6.990 119 299 11/01/2007
30 97402 1,250,000 1,250,000.00 9,343.35 7.630 120 300 12/01/2007
31 32256 3,250,000 3,250,000.00 24,441.60 7.700 120 300 12/01/2007
32 90250 8,300,000 8,290,749.24 62,094.09 7.640 143 299 11/01/2009
33 89119 1,800,000 1,796,418.35 13,320.87 8.090 81 357 09/01/2004
34 31907 6,000,000 6,000,000.00 41,338.33 7.350 120 360 12/01/2007
35 20715 15,550,000 15,516,994.68 111,617.09 7.770 117 357 09/01/2007
36 94086 1,600,000 1,595,323.74 12,894.42 8.510 117 297 09/01/2007
37 92102 2,725,000 2,717,701.82 20,109.18 8.060 116 356 08/01/2007
38 66046 965,000 964,329.83 6,966.80 7.830 119 359 11/01/2007
39 19702 15,200,000 15,200,000.00 113,658.68 8.200 120 360 12/01/2007
40 64030 1,481,500 1,475,327.06 11,552.48 8.120 116 296 08/01/2007
41 36117 1,650,000 1,646,873.19 12,488.82 8.330 117 357 09/01/2007
42 18106 5,325,000 5,325,000.00 40,046.62 7.700 120 300 12/01/2007
46 29464 14,874,000 14,874,000.00 107,989.90 7.300 300 300 12/01/2022
47 01129 12,550,000 12,509,596.67 94,460.47 8.270 115 355 07/01/2007
48 98499 3,300,000 3,295,047.13 22,983.76 7.460 118 358 10/01/2007
49 35816 6,450,000 6,445,126.24 44,702.51 7.410 119 359 11/01/2007
50 77029 4,400,000 4,393,743.88 31,461.35 7.730 118 358 10/01/2007
51 85203 1,600,000 1,595,817.67 11,941.62 8.180 116 356 08/01/2007
52 44094 3,900,000 3,900,000.00 29,304.36 7.690 120 300 12/01/2007
54 21323 800,000 800,000.00 6,227.62 8.100 120 300 12/01/2007
56 43137 1,600,000 1,600,000.00 11,573.36 7.850 84 360 12/01/2004
57 43224 800,000 800,000.00 5,786.68 7.850 84 360 12/01/2004
58 77450 2,000,000 1,994,337.31 15,117.86 8.230 116 344 08/01/2007
59 18951 8,800,000 8,800,000.00 64,081.19 7.920 120 360 12/01/2007
60 43017 7,150,000 7,150,000.00 50,976.65 7.700 120 360 12/01/2007
61 60452 4,558,000 4,543,619.14 35,300.25 8.040 81 297 09/01/2004
62 92105 4,070,000 4,057,935.74 32,563.87 8.424 117 297 09/01/2007
63 30084 17,600,000 17,600,000.00 124,753.36 7.640 144 360 12/01/2009
64 06880 2,025,000 2,020,970.52 16,115.25 8.360 118 298 10/01/2007
65 29464 2,800,000 2,800,000.00 20,855.95 7.590 120 300 12/01/2007
66 29406 1,242,000 1,242,000.00 9,251.10 7.590 120 300 12/01/2007
67 29485 1,600,000 1,600,000.00 11,917.68 7.590 120 300 12/01/2007
68 35801 3,120,000 3,117,527.13 21,114.87 7.170 119 359 11/01/2007
69 33401 13,900,000 13,861,085.35 100,447.17 7.840 164 356 08/01/2011
70 48334 14,875,000 14,875,000.00 102,890.04 7.390 120 360 12/01/2007
71 89121 13,600,000 13,561,075.89 97,244.17 7.730 80 356 08/01/2004
72 77521 5,200,000 5,200,000.00 36,359.15 7.500 120 360 12/01/2007
73 75235 2,175,000 2,175,000.00 15,551.92 7.730 132 360 12/01/2008
74 37072 2,250,000 2,250,000.00 17,113.24 7.830 120 300 12/01/2007
75 97402 1,400,000 1,400,000.00 10,464.55 7.630 120 300 12/01/2007
76 Various 3,200,000 3,196,509.20 24,344.13 7.820 118 298 10/01/2007
77 Various 8,175,000 8,157,241.22 62,124.00 7.820 118 298 10/01/2007
78 91911 3,450,000 3,446,348.69 26,536.31 7.960 119 299 11/01/2007
79 92121 3,030,000 3,026,767.08 23,205.67 7.910 119 299 11/01/2007
80 92040 945,000 944,015.99 7,331.26 8.060 119 299 11/01/2007
81 87120 3,040,000 3,037,922.66 22,116.01 7.910 119 359 11/01/2007
82 33073 8,700,000 8,687,226.40 61,249.22 7.570 178 358 10/01/2012
83 29418 2,400,000 2,392,623.98 19,735.71 8.030 250 250 10/01/2018
84 89122 8,050,000 8,024,604.92 61,157.41 8.370 79 355 07/01/2004
85 92801 5,250,000 5,250,000.00 39,173.45 7.610 120 300 12/01/2007
87 28208 6,600,000 6,600,000.00 47,420.11 7.780 120 360 12/01/2007
88 85040 2,000,000 1,997,664.76 14,585.24 7.350 119 299 11/01/2007
89 32839 4,900,000 4,894,137.94 35,138.07 7.760 118 358 10/01/2007
90 28054 5,650,000 5,641,570.73 39,466.94 7.490 118 358 10/01/2007
91 72404 15,750,000 15,750,000.00 112,728.29 7.140 300 300 12/01/2022
92 18901 5,500,000 5,493,359.56 39,365.44 7.140 119 299 11/01/2007
93 28562 10,500,000 10,479,568.36 78,514.22 8.200 117 357 09/01/2007
94 33328 2,300,000 2,300,000.00 17,041.70 7.530 120 300 12/01/2007
95 20601 880,000 880,000.00 6,850.38 8.100 120 300 12/01/2007
96 19380 11,000,000 10,986,719.13 78,730.87 7.140 119 299 11/01/2007
97 48706 1,200,000 1,198,725.85 9,214.15 7.940 119 299 11/01/2007
98 28602 2,350,000 2,348,377.83 17,014.67 7.860 119 359 11/01/2007
99 71129 5,440,000 5,440,000.00 38,037.27 7.500 300 360 12/01/2022
200 33604 6,500,000 6,490,475.59 45,806.00 7.580 118 358 10/01/2007
201 77505 5,200,000 5,200,000.00 36,359.15 7.500 120 360 12/01/2007
202 92887 3,000,000 2,995,768.66 21,533.84 7.770 118 358 10/01/2007
Control Ground Underwriting Net Subservicing (1) Servicing Fee
Number Lease Reserves Rate Fees Fees Subservicer
------------------------------------------------------------------------------------------------------------------------------
1 No 0.15 per sq. ft. 8.365 0.030 0.075 GCAM
2 No 0.15 per sq. ft. 8.655 0.030 0.075 GCAM
3 No 0.10 per sq. ft. 7.765 0.030 0.075 GCAM
4 No 0.10 per sq. ft. 7.765 0.030 0.075 GCAM
5 No 0.15 per sq. ft. 7.985 0.030 0.075 GCAM
6 No 0.10 per sq. ft. 8.185 0.030 0.075 GCAM
7 No 0.10 per sq. ft. 8.035 0.030 0.075 GCAM
8 No 298 per unit 7.515 0.030 0.075 GCAM
9 No 0.15 per sq. ft. 7.975 0.030 0.075 GCAM
10 No 200 per unit 7.465 0.030 0.075 GCAM
11 No 35 per pad 8.165 0.030 0.075 GCAM
12 No 0.15 per sq. ft. 8.245 0.030 0.075 GCAM
13 No 0.15 per sq. ft. 7.675 0.030 0.075 GCAM
14 No 291 per unit 7.405 0.030 0.075 GCAM
16 No 25 per pad 7.365 0.030 0.075 GCAM
17 No 0.16 per sq. ft. 8.015 0.030 0.075 GCAM
18 No 200 per unit 6.895 0.030 0.075 GCAM
19 No 0.19 per sq. ft. 7.895 0.030 0.075 GCAM
20 Partial 4% of revenue 7.625 0.030 0.075 GCAM
21 No 0.26 per sq. ft. 7.435 0.030 0.075 GCAM
22 No 200 per unit 7.555 0.030 0.075 GCAM
23 No 306 per unit 8.625 0.030 0.075 GCAM
24 No 340 per unit 7.215 0.030 0.075 GCAM
26 No 0.15 per sq. ft. 8.155 0.030 0.075 GCAM
27 No 252 per unit 7.455 0.030 0.075 GCAM
28 No 250 per unit 7.885 0.030 0.075 GCAM
29 Yes/will convert to both in '98 0.15 per sq. ft. 6.915 0.030 0.075 GCAM
30 No 0.34 per sq. ft. 7.555 0.030 0.075 GCAM
31 No 4% of revenue 7.625 0.030 0.075 GCAM
32 No 0.10 per sq. ft. 7.565 0.030 0.075 GCAM
33 No 301 per unit 8.015 0.030 0.075 GCAM
34 No 0.21 per sq. ft. 7.275 0.030 0.075 GCAM
35 Yes 0.20 per sq. ft. 7.695 0.030 0.075 GCAM
36 No 0.23 per sq. ft. 8.435 0.030 0.075 GCAM
37 No 0.21 per sq. ft. 7.985 0.030 0.075 GCAM
38 No 257 per unit 7.755 0.030 0.075 GCAM
39 No 50 per pad 8.125 0.030 0.075 GCAM
40 No 0.20 per sq. ft. 8.045 0.030 0.075 GCAM
41 No 0.19 per sq. ft. 8.255 0.030 0.075 GCAM
42 No 4% of revenue 7.625 0.030 0.075 GCAM
46 No 174 per unit 7.225 0.030 0.075 GCAM
47 No 0.15 per sq. ft. 8.195 0.030 0.075 GCAM
48 No 262 per unit 7.385 0.030 0.075 GCAM
49 No 250 per unit 7.335 0.030 0.075 GCAM
50 No 0.20 per sq. ft. 7.655 0.030 0.075 GCAM
51 No 44 per pad 8.105 0.030 0.075 GCAM
52 No 0.15 per sq. ft. 7.615 0.030 0.075 GCAM
54 No 0.15 per sq. ft. 8.025 0.030 0.075 GCAM
56 No 46 per pad 7.775 0.030 0.075 GCAM
57 No 45 per pad 7.775 0.030 0.075 GCAM
58 No 0.20 per sq. ft. 8.155 0.030 0.075 GCAM
59 No 51 per pad 7.845 0.030 0.075 GCAM
60 No 0.18 per sq. ft. 7.625 0.030 0.075 GCAM
61 No 0.15 per sq. ft. 7.965 0.030 0.075 GCAM
62 No 0.10 per sq. ft. 8.349 0.030 0.075 GCAM
63 Yes 0.15 per sq. ft. 7.565 0.030 0.075 GCAM
64 No 0.18 per sq. ft. 8.285 0.030 0.075 GCAM
65 No 0.15 per sq. ft. 7.515 0.030 0.075 GCAM
66 No 0.15 per sq. ft. 7.515 0.030 0.075 GCAM
67 No 0.15 per sq. ft. 7.515 0.030 0.075 GCAM
68 No 225 per unit 7.095 0.030 0.075 GCAM
69 Partial 0.15 per sq. ft. 7.765 0.030 0.075 GCAM
70 No 200 per unit 7.315 0.030 0.075 GCAM
71 No 25 per pad 7.655 0.030 0.075 GCAM
72 No 232 per unit 7.425 0.030 0.075 GCAM
73 No 0.20 per sq. ft. 7.655 0.030 0.075 GCAM
74 No 0.36 per sq. ft. 7.755 0.030 0.075 GCAM
75 No 0.22 per sq. ft. 7.555 0.030 0.075 GCAM
76 No 0.05 per sq. ft. 7.745 0.030 0.075 GCAM
77 No 0.06 per sq. ft. 7.745 0.030 0.075 GCAM
78 No 0.10 per sq. ft. 7.885 0.030 0.075 GCAM
79 No 0.10 per sq. ft. 7.835 0.030 0.075 GCAM
80 No 0.16 per sq. ft. 7.985 0.030 0.075 GCAM
81 No 0.26 per sq. ft. 7.835 0.030 0.075 GCAM
82 No 0.17 per sq. ft. 7.495 0.030 0.075 GCAM
83 No 0.12 per sq. ft. 7.955 0.030 0.075 GCAM
84 No 25 per pad 8.295 0.030 0.075 GCAM
85 Yes 229 per unit 7.535 0.030 0.075 GCAM
87 No 250 per unit 7.705 0.030 0.075 GCAM
88 No 0.16 per sq. ft. 7.275 0.030 0.075 GCAM
89 No 274 per unit 7.685 0.030 0.075 GCAM
90 No 374 per unit 7.415 0.030 0.075 GCAM
91 No 304 per unit 7.065 0.030 0.075 GCAM
92 Both 0.28 per sq. ft. 7.065 0.030 0.075 GCAM
93 No 0.15 per sq. ft. 8.125 0.030 0.075 GCAM
94 No 0.24 per sq. ft. 7.455 0.030 0.075 GCAM
95 No 0.15 per sq. ft. 8.025 0.030 0.075 GCAM
96 Yes/will convert to both in '98 0.15 per sq. ft. 7.065 0.030 0.075 GCAM
97 No 25 per pad 7.865 0.030 0.075 GCAM
98 No 0.15 per sq. ft. 7.785 0.030 0.075 GCAM
99 No 250 per unit 7.425 0.030 0.075 GCAM
200 No 259 per unit 7.505 0.030 0.075 GCAM
201 No 200 per unit 7.425 0.030 0.075 GCAM
202 No 0.20 per sq. ft. 7.695 0.030 0.075 GCAM
(1) Servicing Fees consist of Master Servicing, Sub-Servicing, Special and
Trustee Fees
A-1
EXHIBIT B
FORM OF CERTIFICATE OF AN OFFICER OF
GE CAPITAL ACCESS, INC.
I, ______________________, hereby certify that I am an authorized signatory
of GE Capital Access, Inc., a Delaware Corporation (the "Seller"), and that,
based upon information provided to me by appropriate officers, certify further
as follows, to the best of my knowledge:
1. The representations and warranties of the Seller in the Mortgage Loan
Purchase Agreement, dated as of __________, 1997 (the "Purchase 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.
2. The Seller has, in all material aspects, complied with all the
agreements and satisfied all the conditions on its part that are required
under the Purchase Agreement to be performed or satisfied at or prior to
the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1997.
GE CAPITAL ACCESS, INC.
By: ___________________________
Name:
Title: Authorized Signatory
I, ______________________, an Assistant Secretary of the Seller, hereby
certify that ______________________ is an authorized signatory of the Seller and
that the signature appearing above is his genuine signature.
IN WITNESS WHEREOF, I have executed this Certificate as of __________,
1997.
By: ___________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF LEGAL OPINION
1. The Mortgage Loan Seller is a Delaware corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its assets and conduct its
business as presently conducted by it and to own the Mortgage Loans, is duly
qualified as a foreign corporation in good standing in the State of New York,
and the Mortgage Loan Seller has taken all necessary action to authorize the
execution, delivery and performance of the Mortgage Loan Purchase and Sale
Agreement by it, and has the power and authority to execute, deliver and perform
the Mortgage Loan Purchase and Sale Agreement and all the transactions
contemplated hereby, including, but not limited to, the power and authority to
sell, assign and transfer the Mortgage Loans in accordance with, and perform its
obligations under, the Mortgage Loan Purchase and Sale Agreement.
2. The Mortgage Loan Purchase and Sale Agreement has been duly authorized,
executed and delivered by the Mortgage Loan Seller and constitutes the legal,
valid and binding obligations of the Mortgage Loan Seller, enforceable against
the Mortgage Loan Seller in accordance with the terms of the Mortgage Loan
Purchase and Sale Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), and except to the extent rights to indemnity
and contribution may be limited by applicable law.
3. The execution and delivery of the Mortgage Loan Purchase and Sale
Agreement by the Mortgage Loan Seller and the performance of its obligations
under the Mortgage Loan Purchase and Sale Agreement will not conflict with any
provision of any law or regulation to which the Mortgage Loan Seller is subject,
or conflict with, result in a breach of or constitute a default under any of the
terms, conditions or provisions of any of the Mortgage Loan Seller's
organizational documents or, to our knowledge, any agreement or instrument to
which the Mortgage Loan Seller is a party or by which it is bound, or any order
or decree applicable to the Mortgage Loan Seller, or result in the creation or
imposition of any lien on any of the Mortgage Loan Seller's assets or property,
in each case which would materially and adversely affect the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by the Mortgage
Loan Purchase and Sale Agreement.
4. There is no action, suit, proceeding or investigation pending or
threatened, against the Mortgage Loan Seller in any court or by or before any
other governmental agency or instrumentality which would materially and
adversely affect the validity of the Mortgage Loans or the ability of the
Mortgage Loan Seller to carry out the transactions contemplated by this
Agreement.
C-1
5. To our knowledge, the Mortgage Loan 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 governmental agency, which default might
have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Mortgage Loan Seller or its properties
or might have consequences that would materially and adversely affect its
performance under the Mortgage Loan Purchase and Sale Agreement.
6. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan
Seller with the Mortgage Loan Purchase and Sale Agreement or the consummation of
the transactions contemplated by the Mortgage Loan Purchase and Sale Agreement,
other than those which have been obtained by the Mortgage Loan Seller.
In addition, counsel shall state (which statement shall be in form and
substance reasonably acceptable to the Company) their view as to the accuracy of
the information regarding the Mortgage Loans in the Prospectus Supplement and
the Private Placement Memorandum.
C-2
EXHIBIT D
SCHEDULE OF MORTGAGE LOANS TO ONE BORROWER
OR GROUP OF AFFILIATED BORROWERS
D-1
0383070.01
Exhibit D
Schedule of Mortgage Loans to One Borrower or Group of Affiliated Borrowers.
================================================================================
Loan Group Closing Date
________________________________________________________________________________
1. X.X. Xxxxxxx Company Affiliates Loans:
________________________________________________________________________________
(a) West Goshen (10/31/97)
________________________________________________________________________________
(b) Doylestown (10/31/97)
________________________________________________________________________________
(c) Town Center (10/31/97)
________________________________________________________________________________
2. All Aboard Mini-Storage Group Loans:
________________________________________________________________________________
(a) Mid-Town Mini Storage, Ltd.-San Diego, CA (08/13/97)
________________________________________________________________________________
(b) Hyrail Partners IA LLC- Concord, Northridge & Hollywood, CA (09/15/97)
________________________________________________________________________________
(c) Hyrail Partners IIIA LLC
________________________________________________________________________________
(i) Anaheim, CA (09/11/97)
________________________________________________________________________________
(ii) Sunnyvale, CA (09/15/97)
________________________________________________________________________________
(iii) San Ramon, CA (11/14/97)
________________________________________________________________________________
(iv) San Francisco, CA (11/14/97)
________________________________________________________________________________
3. 12400 LLC Affiliate Loans:
________________________________________________________________________________
(a) Rolling Xxxxxx Associates, Ltd./Raintree Apartments (11/10/97)
________________________________________________________________________________
(b) Willow Springs Asso., Ltd./Willow Springs Apartments (11/10/97)
________________________________________________________________________________
4. Xxxxxxx Affiliate Loans:
________________________________________________________________________________
(a) The Links at Jonesboro (11/06/97)
________________________________________________________________________________
(b) Dogwood Lakes Apartments (09/26/97)
________________________________________________________________________________
5. XxXxxxxx Xxxxxx Affiliate Loans:
________________________________________________________________________________
(a) Sports Authority (09/11/97)
________________________________________________________________________________
(b) CVS Pharmacy (10/31/97)
________________________________________________________________________________
6. Xxxxxx/Xxxxx Affiliate Loans:
________________________________________________________________________________
(a) Fairfield Inn/Concord Jacksonville L.P. (11/14/97)
________________________________________________________________________________
(b) Hampton Inn/TwoHotel Partnership, L.P. (11/17/97)
________________________________________________________________________________
(c) Courtyard by Marriott/TwoHotel Partnership, L.P. (11/14/97)
================================================================================
D-2
================================================================================
Loan Group Closing Date
________________________________________________________________________________
7. Security Portfolio II, L.P. Loans:
________________________________________________________________________________
(a) Security Storage Plano, Austin & Colorado Facilities (09/26/97)
________________________________________________________________________________
(b) Security Storage Dallas, Fort Worth Facilities (09/29/97)
________________________________________________________________________________
8. Xxxxxxxx/Xxxxxxxx Affiliate Loans:
________________________________________________________________________________
(a) Lexington Park Self Storage (11/14/97)
________________________________________________________________________________
(b) Waldorf Mini-Storage (11/17/97)
________________________________________________________________________________
9. Pack Rat Group Loans:
________________________________________________________________________________
(a) Pack Rat North (11/04/97)
________________________________________________________________________________
(b) Pack Rat Summerville (11/04/97)
________________________________________________________________________________
(c) Pack Rat Charleston (11/04/97)
________________________________________________________________________________
10. Tandum/QCA Income Partners Loans:
________________________________________________________________________________
(a) Maplewood Mobile Home (11/06/97)
________________________________________________________________________________
(b) Lockburne Lodge (11/06/97)
________________________________________________________________________________
11. Sentry Self Storage, L.L.C. Loans:
________________________________________________________________________________
(a) Eastgate (11/24/97)
________________________________________________________________________________
(b) Lakeside (10/24/97)
________________________________________________________________________________
(c) Chula Vista (10/24/97)
________________________________________________________________________________
12. Xxxxxxx Affiliate Loans:
________________________________________________________________________________
(a) La Casita/Kelmesa, L.L.C. (07/02/97)
________________________________________________________________________________
(b) Duck Creek L.P./Stadium Mobile Home Park (06/04/97)
________________________________________________________________________________
13. Xxxxxx Storage Partners, Ltd. Loans:
________________________________________________________________________________
(a) Xxxxxx Mini Warehouses (11/04/97)
________________________________________________________________________________
(b) Sav-N-Lock (11/04/97)
________________________________________________________________________________
14. M & J Affiliate Loans:
________________________________________________________________________________
(a) M&J Dover Farms, LP (09/26/97)
________________________________________________________________________________
(b) Mid Oak Plaza, LLC (08/26/97)
________________________________________________________________________________
(c) Northlake Tower (11/12/97)
________________________________________________________________________________
15. GE Affiliate Loans (an affiliate of the Mortgage Loan Seller,
directly or indirectly, owns a majority interest in each Borrower):
________________________________________________________________________________
(a) Mid Oak Plaza, LLC (08/26/97)
________________________________________________________________________________
(b) Free State Mall (08/29/97)
================================================================================
D-3
================================================================================
Loan Group Closing Date
________________________________________________________________________________
16. Brookside Affiliate Loans:
________________________________________________________________________________
(a) Xxxx Club Apartments (10/29/97)
________________________________________________________________________________
(b) Willow Pond Apartments (09/18/97)
________________________________________________________________________________
(c) Park at Chateau (10/30/97)
================================================================================
D-4
SCHEDULE 1
----------
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
UNDER SECTION 3(b)
S-1-1
GECC MLPA
Schedule 1
Exceptions to Representations and Warranties under Section 3(b)
REP NO.
-------
(vi): Defeasance: Metro Center II (11/17/97).
(xii): Hyper-amortization loans: See attached Schedule 2.
(xxxiii): The Bluffs at Northwoods (9/18/97). The Mortgagor has been the
subject of a bankruptcy proceeding for which the reorganization plan
was confirmed on 6/6/97 and the applicable appeal period has
expired. The Mortgagor has paid or provided for all expenses and
fees associated with the plan, and the plan has been substantially
consummated, although the final order closing the case has not yet
been filed.
(xliii): Secured Subordinate Debt:
(a) Melody Lakes MHP (11/06/97). Two subordinate loans were made
to the Mortgagor by affiliates of the Mortgagor in the
aggregate amount of $700,000.00, secured by subordinate liens
on the property, and subject to a Subordination and Standstill
Agreement.
(xliv): Ground Lease Exceptions:
(a) Pine Trail Shopping Center (8/1/97). The Mortgage Property is
subject to five ground leases along the eastern boundary of
the shopping center tract and relate to a fast food
restaurant, drive-in banking facility, and parking areas. (See
attached matrix for exceptions to related representation.)
(b) Courtyard by Marriott (11/14/97). The Mortgaged Property is
secured by a fee simple interest, except with respect to the
parking garage, which is subject to a ground lease. The rent
schedule for the parking garage ground lease provides for
payment of net profits from the operation of the parking
garage.
S-1-2
(c) Northlake Tower (11/12/97). Rent is not fixed. Rent Schedule:
a. Annual Rent:
10/4/1982 - 10/3/1983: $150,000
10/4/1983 - 10/3/1984: $300,000
10/4/1984 - 10/3/2007: $600,000
10/4/2007 - 10/3/2032: 12% of appraised
value of Land, not
to be less than
$600,000, nor more
than $1,200,000
10/4/2033 - 10/3/2057: 12% of the
appraised value of
the Land, not to
be less than the
rental for the
previous 25 year
period, nor more
than twice the
amount thereof.
b. Plus 7% of Gross Rental Income for every year of the
term.
(d) Free State Mall (8/29/97). Rent is not fixed. CPI adjustments
every 5 years subject to 5% limit. The lease expiration date is
10/31/2022 with a 42-year extension option.
(e) Stone Creek Plaza (10/31/97). In addition to the base rent of
$103,600 per year, the Mortgagor is required to pay annually as
additional adjustment rent (i) 25% of rents received by Mortgagor
with respect to the commercial portion of the property in excess
of a base determined for calendar year 1980 (which base is
$233,180), and (ii) 25% of rents received by Mortgagor with
respect to the multifamily portion of the property in excess of a
base determined for calendar year 1980 (which base is $336,423).
For 1996, the total ground lease rent was $219,840, of which
$116,240 was additional adjustment rent.
(f) West Goshen and Doylestown Shopping Center Properties (10/31/97).
The Mortgage Loans are secured by either a fee or leasehold
interest in the Mortgaged Properties. The fee interest owned by
affiliates of the Mortgagors are in all cases expressly subject
to the Mortgages. The fee interests underlying two ground leases
are not subject to the Mortgages and are described as follows:
(a) Freedom Ground Lease: At closing of the
S-1-3
Mortgage Loans, a ground lease covering an aggregate of
21.337 acres at the West Goshen and Doylestown properties
between Freedom Properties, L.P. ("Freedom"), as ground
lessor, and the Mortgagor, as ground lessee (the "Freedom
Ground Lease") was not subject or subordinate to the
Mortgage. Freedom is not an affiliate of the Mortgagor. The
loan documents provide that at the time the Mortgagor
becomes the fee estate owner under the Freedom Ground Lease,
the Mortgage lien on each property automatically spreads to
encumber the fee estate. The Mortgage Loan Seller holds in
escrow an aggregate of $6.5 million for the purpose of the
acquisition by the Mortgagors of the fee estate from Freedom
pursuant to an exercised purchase option. The Mortgagor
contemplates closing on the acquisition of the fee in
January 1998.
(b) Regency Ground Lease: A ground lease covering a small
portion along the northwest boundary representing .361 acres
at the Doylestown property between Regency Xxxxx Associates
("Regency"), as ground lessor, and Pullman Associates, as
ground lessee (the "Regency Ground Lease"), existed at
closing and is not subject or subordinate to the Mortgage.
The Mortgagor has entered into a sublease of the Regency
Ground Lease from Pullman Associates with an original term
expiring in 2006, and options to renew the sublease for one
period of fifteen years followed by four successive periods
of five years each, provided Pullman Associates has
purchased the Land. Pullman has both an option and an
obligation to purchase the Land by 2006. Pursuant to Section
13(c) of the sublease, the Mortgagor's lender may exercise
any of the Mortgagor's rights and powers under the sublease.
S-l-4
Pine Trail Ground Lease Exceptions
-------------------------------------------------------------------------------
Xxxxxx Groot Xxxxxxx Xxxxxx
Leases
(2)
-------------------------------------------------------------------------------
Recorded? Yes Yes Yes Yes
-------------------------------------------------------------------------------
Permits encumbrance? Yes Yes(1) Yes Yes
-------------------------------------------------------------------------------
Use/Subletting restrictions? No No No No(2)
-------------------------------------------------------------------------------
Attornment by lender upon Yes No Yes Yes
foreclosure?
-------------------------------------------------------------------------------
Assignable upon foreclosure Yes No Yes Yes
without consent?
-------------------------------------------------------------------------------
Notice and cure rights for Yes Yes Yes Yes
Lender?
-------------------------------------------------------------------------------
Original term must extend Yes Yes(3) Yes Yes
more than 10 years beyond
stated maturity:
-------------------------------------------------------------------------------
Casualty insurance proceeds Yes No No No
disbursed under lender's
control?
-------------------------------------------------------------------------------
Lender may participate in No No No No
condemnation proceeds?
-------------------------------------------------------------------------------
Prohibits mortgage on fee, (4) No No No
or fee is subordinate to
ground lease?
-------------------------------------------------------------------------------
No amendment or termination Yes No Yes Yes
without consent of Lender?
-------------------------------------------------------------------------------
Landlord will enter into new No No Yes Yes
lease with Lender or assigns
upon foreclosure?
--------------
(1) implied in Estoppel by agreeing to notify Lender of default
(2) provided lessor is notified of any subleases
(3) original term expires January 31, 2015, but Maker has two 20 year
extension options
(4) Upon request of Maker, any mortgagee of the ground lessor's fee interest
will subordinate its mortgage to Maker's mortgage.
S-1-5
-------------------------------------------------------------------------------
Fixed rental obligation (5) Yes(6) No No
during mortgage term?
-------------------------------------------------------------------------------
---------------
(5) One lease has a fixed rental obligation, and one does not.
(6) but Maker will also pay percentage rent
S-1-6
SCHEDULE 2
----------
LIST OF HYPER-AMORTIZATION LOANS
S-2-1
XX XXX LOANS
MLMI 1997-C2
(INCL. 12/1/97
PYMT)
HYPERAM CONTROL # PROPERTY NAME CURRENT BALANCE
-------------------------------------------------------------------------------
Yes 1 0000 Xxxxxxxxx Xxxxxx 9,353,356.91
Yes 2 A-1 Self Storage 2,988,683.02
Yes 3 All Aboard - San Francisco 4,218,000.00
Yes 4 All Aboard - San Xxxxx 3,386,000.00
Yes 5 All Aboard - Sunnyvale 6,075,278.73
Yes 6 All Aboard Self Storage - Anaheim I 1,791,369.36
Yes 7 All Aboard- 8,726,874.59
Northridge/Concord/N. Hollywood
Yes 8 Xxxxx Xxxxx 6,272,148.77
Yes 9 American Self Storage 1,947,966.19
Yes 00 Xxxxxxx Xxxxx Self Storage 1,848,153.70
Yes 00 Xxxxxxx Xxxxxx 3,040,000.00
Yes 00 Xxxxxx Xxxxx Apartments 5,320,035.24
Yes 16 Cheron Village 5,146,131.80
Yes 00 Xxxxxx Xxxxx Xxxxx 2,007,917.22
Yes 18 Citrus Creek Apartments 14,987,631.66
Yes 19 Columbia Junction Center 3,400,000.00
Yes 00 Xxxxxxxxx - Xxxxxxxxx 8,808,000.00
Yes 22 Cypress Pointe Apartments 7,189,555.06
Yes 00 Xxxxxxx Xxxxx 1,577,377.57
Yes 00 Xxx Xxxx Xxxxxxx 2,876,604.89
Yes 28 Dover Farms Apartments 11,783,982.91
Yes 30 Xxxxxx Mini Storage 1,250,000.00
Yes 00 Xxxxxxxxx Xxx - Xxxxxxxxxxxx 3,250,000.00
Yes 32 Federal Express Building 8,290,749.24
Yes 33 Xxxxxxx Apartments 1,796,418.35
Yes 34 Fountain Park Shopping Center 6,000,000.00
Yes 00 Xxxx Xxxxx Xxxx 15,516,994.68
Yes 36 X.X. Xxxxxxxxx Center (aka El 1,595,323.74
Camino Real)
Yes 37 Gateway Medical Center 2,717,701.82
Yes 38 Gazebo Apartments 964,329.83
Yes 39 Glasgow Mobile Home Park 15,200,000.00
Yes 40 Grandview Shopping Center 1,475,327.06
Yes 41 Halcyon Village Shopping Center 1,646,873.19
Yes 42 Hampton Inn - Allentown 5,325,000.00
Yes 00 Xxxxxxxxx Xxxxxx 12,509,596.67
S-2-2
Yes 48 Hidden Lake Apartments 3,295,047.13
Yes 49 Xxxx Club 6,445,126.24
Yes 50 Kroger Woodforest Shopping Center 4,393,743.88
Yes 51 La Casita Mobile Home Park 1,595,817.67
Yes 00 Xxxx Xxxx Xxxxxxx Xxxx 3,900,000.00
Yes 54 Lexington Park Self Storage 800,000.00
Yes 00 Xxxxx Xxxxx 1,994,337.31
Yes 59 Melody Lakes 8,800,000.00
Yes 60 Metro Center II 7,150,000.00
Yes 61 Mid-Oak Plaza 4,543,619.14
Yes 62 Midtown Mini Storage 4,057,935.74
Yes 63 Northlake Tower Festival 17,600,000.00
Yes 65 Pack Rat Charleston 2,800,000.00
Yes 66 Pack Rat North 1,242,000.00
Yes 67 Pack Rat Summerville 1,600,000.00
Yes 68 Park Chateau 3,117,527.13
Yes 70 Polo Club Apartments 14,875,000.00
Yes 71 Pueblo Del Sol 13,561,075.89
Yes 72 Raintree Apartments 5,200,000.00
Yes 73 Regal Gardens 2,175,000.00
Yes 00 Xxxxxxxxx Xxxxx 2,250,000.00
Yes 75 Save & Lock 1,400,000.00
Yes 76 Security Portfolio IIB 3,196,509.20
Yes 77 Security Portfolio IIA 8,157,241.22
Yes 78 Sentry Self Storage - Chula Vista 3,446,348.69
Yes 79 Sentry Self Storage - Eastgate 3,026,767.08
Yes 80 Sentry Self Storage - Lakeside 944,015.99
Yes 81 Shoppes at Xxxxxx Ranch 3,037,922.66
Yes 82 Shoppes of Deer Creek 8,687,226.40
Yes 84 Stadium MHP 8,024,604.92
Yes 85 Stone Creek Apts and Plaza 5,250,000.00
Yes 87 Summer Lake 6,600,000.00
Yes 88 Superior Industrial Center 1,997,664.76
Yes 89 The Atriums 4,894,137.94
Yes 90 The Bluffs at Northwoods 5,641,570.73
Yes 92 Town Center Shopping Center 5,493,359.56
Yes 00 Xxxx Xxxxxx Xxxx 10,479,568.36
Yes 94 University Creek Shopping Center 2,300,000.00
Yes 95 Waldorf Self Storage 880,000.00
Yes 00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx 2,348,377.83
Yes 000 Xxxxxx Xxxx Apartments 6,490,475.59
Yes 201 Willow Spring Apartments 5,200,000.00
Yes 000 Xxxxx Xxxxx Xxxxxxx 2,995,768.66
S-2-3
