EXHIBIT 99.1
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of July 1, 2003 (the
"Agreement"), is entered into between Wachovia Bank, National Association (the
"Seller") and Wachovia Commercial Mortgage Securities, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of July 1,
2003, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (in such capacity, the "Master Servicer"), Lennar Partners,
Inc., as special servicer (in such capacity, the "Special Servicer"), and Wells
Fargo Bank Minnesota, N.A., as trustee (the "Trustee"). Capitalized terms used
but not defined herein (including the Schedules hereto) have the respective
meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $671,952,013 (the "Wachovia Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The Wachovia
Mortgage Loan Balance, together with the aggregate principal balance of the
Other Mortgage Loans as of the Cut-Off Date (after giving effect to any payments
due on or before such date whether or not such payments are received), is
expected to equal an aggregate principal balance (the "Cut-Off Date Pool
Balance") of $1,200,914,923 (subject to a variance of plus or minus 5.0%). The
purchase and sale of the Mortgage Loans shall take place July 1, 2003, or such
other date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall be equal to (i) 109.4702% of the Wachovia Mortgage Loan
Balance as of the Cut-Off Date, plus (ii) $748,230, which amount represents the
amount of interest accrued on the Wachovia Mortgage Loan Balance at the related
Net Mortgage Rate for the period from and including the Cut-Off Date up to but
not including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of the Seller
in and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected on or after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of Wells Fargo Bank Minnesota, N.A., as trustee for
the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2003-C5 or in blank
(or a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of Wells Fargo Bank
Minnesota, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2003-C5, or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of Wells Fargo Bank Minnesota, N.A., as trustee for
the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2003-C5, or in
blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of Wells Fargo Bank
Minnesota, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2003-C5, as assignee, or in blank;
(ix) an original or copy of (a) any Ground Lease or (b) any loan
guaranty, indemnity, ground lessor estoppel, environmental insurance
policy or Lease Enhancement Policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to a Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to a Mortgage Loan;
(xiii) for any hospitality properties, copies of franchise
agreements and comfort letters, if any, and the originals of any documents
required to transfer or assign the comfort letters; and
(xiv) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Co-Lender Agreement;
provided that a copy of each mortgage note relating to such Companion
Loan, rather than the original, shall be provided, and no assignments
shall be provided.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.02(a) of the Pooling and Servicing Agreement.
(e) All documents and records (except attorney-client privileged
communications and internal correspondence and credit analysis of the Seller)
relating to each Mortgage Loan and in the Seller's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the Seller to the
Master Servicer or at the direction of the Master Servicer to the appropriate
sub-servicer, together with any related escrow amounts and reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized and
validly existing and in good standing under the laws of the United States
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights in general, as they may be
applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's articles of association or bylaws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution of this Agreement or the performance
by the Seller of its obligations under this Agreement (except to the
extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Aggregate Purchase Price. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases), (xii) and
(xiii) of the definition of Mortgage File, the Seller shall cure any material
exception listed therein (for the avoidance of doubt, any deficiencies with
respect to the documents specified in clause (ii) resulting solely from a delay
in the return of the related documents from the applicable recording office,
shall be cured in the time and manner described in Section 2.01(c) of the
Pooling and Servicing Agreement). If such exception is not so cured, the Seller
shall either (1) repurchase the related Mortgage Loan, (2) with respect to
exceptions relating to clause (xii) of the definition of "Mortgage File",
deposit with the Trustee an amount, to be held in trust in a Special Reserve
Account pursuant to the Pooling and Servicing Agreement, equal to the amount of
the undelivered letter of credit (in the alternative, the Seller may deliver to
the Trustee, with a certified copy to the Master Servicer and Trustee, a letter
of credit for the benefit of the Master Servicer on behalf of the Trustee and
upon the same terms and conditions as the undelivered letter of credit) which
the Master Servicer on behalf of the Trustee may use (or draw upon, as the case
may be) under the same circumstances and conditions as the Master Servicer would
have been entitled to draw on the undelivered letter of credit, or (3) with
respect to any exceptions relating to clauses (i), (ii) and (vii), deposit with
the Trustee an amount, to be held in trust in a Special Reserve Account pursuant
to the Pooling and Servicing Agreement, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan on such date. Any funds or letter of credit
deposited pursuant to clauses (2) and (3) shall be held by the Trustee until the
earlier of (x) the date on which the Master Servicer certifies to the Trustee
and the Controlling Class Representative that such exception has been cured (or
the Trustee certifies the same to the Controlling Class Representative), at
which time such funds or letter of credit, as applicable, shall be returned to
the Seller and (y) thirty (30) Business Days or, if the Controlling Class
Representative has extended the cure period, forty-five (45) Business Days after
the Closing Date; provided, however, that if such exception is not cured within
such thirty (30) Business Days or forty-five (45) Business Days, as the case may
be, (A) in the case of clause (2), the Trustee shall retain the funds or letter
of credit, as applicable, or (B) in the case of clause (3), the Seller shall
repurchase the related Mortgage Loan in accordance with the terms and conditions
of this Agreement, at which time such funds shall be applied to the Purchase
Price of the related Mortgage Loan and any letter of credit will be returned to
the Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach relating
to a Mortgage Loan not being a "qualified mortgage" within the meaning of the
REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from any party
to the Pooling and Servicing Agreement discovering such Document Defect or
Breach provided the Seller receives such notice in a timely manner), if such
Document Defect or Breach shall materially and adversely affect the value of the
applicable Mortgage Loan, the interest of the Trust therein or the interests of
any Certificateholder, cure such Document Defect or Breach, as the case may be,
in all material respects, which shall include payment of actual or provable
losses and any Additional Trust Fund Expenses directly resulting from any such
Document Defect or Breach or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the Master Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith; provided, however, that unless the
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, and if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, such Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan); and provided, further, that
with respect to such additional 90-day period the Seller shall have delivered an
officer's certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided, further, that no Document Defect (other
than with respect to a Mortgage Note, Mortgage, title insurance policy, Ground
Lease, any letter of credit, any franchise agreement, any comfort letter and any
comfort letter transfer documents (collectively, the "Core Material Documents"))
shall be considered to materially and adversely affect the value of the related
Mortgage Loan, the interests of the Trust therein or the interests of any
Certificateholder unless the document with respect to which the Document Defect
exists is required in connection with an imminent enforcement of the mortgagee's
rights or remedies under the related Mortgage Loan, defending any claim asserted
by any borrower or third party with respect to the Mortgage Loan, establishing
the validity or priority of any lien or any collateral securing the Mortgage
Loan or for any immediate significant servicing obligations; provided, further,
with respect to Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust therein or the
related Mortgage Loan, other than with respect to Document Defects relating to
the Core Material Documents, any applicable cure period following the initial
90-day cure period may be extended by the Master Servicer or the Special
Servicer if the document involved is not needed imminently. Such extension will
end upon 30 days notice of such need as reasonably determined by the Master
Servicer or Special Servicer (with a possible 30 day extension if the Master
Servicer or Special Servicer agrees that the Seller is diligently pursuing a
cure). The Seller shall cure all Document Defects, which materially and
adversely affect the interests of any Certificateholder, the interests of the
Trust therein or the related Mortgage Loan, regardless of the document involved
no later than 2 years following the Closing Date; provided that the initial
90-day cure period referenced in this paragraph may not be reduced. For a period
of two years from the Closing Date, so long as there remains any Mortgage File
relating to a Mortgage Loan as to which there is any uncured Document Defect or
Breach, the Seller shall provide the officer's certificate to the Trustee
described above as to the reasons such Document Defect or Breach remains uncured
and as to the actions being taken to pursue cure. Notwithstanding the foregoing,
the delivery of a commitment to issue a policy of lender's title insurance as
described in clause 12 of Schedule I hereof in lieu of the delivery of the
actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution and repurchase of Mortgage Loans set forth herein. In the event
that the remaining Crossed Loans satisfy the aforementioned criteria, the Seller
may elect either to repurchase or substitute for only the affected Crossed Loan
as to which the related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred by the Purchaser in connection with such modification or
accommodation (including but not limited to recoverable attorney fees) shall be
paid by the Seller.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement. Nothing in this Agreement shall
prohibit the Purchaser or its assigns (including the Master Servicer and/or the
Special Servicer) from pursuing any course of action authorized by the Pooling
and Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer shall notify the Seller in
writing of its intention to liquidate such Defaulted Mortgage Loan or REO
Property at least 45 days prior to any such action. If the Seller consents to
such sale and voluntarily agrees to (a) repurchase such Defaulted Mortgage Loan
or REO Property or (b) a court of competent jurisdiction determines that the
Seller is liable under this Agreement to repurchase such Defaulted Mortgage Loan
or REO Property then such Seller shall remit to the Purchaser an amount equal to
the difference if any of the price of such Defaulted Mortgage Loan or REO
Property as sold and the price at which the Seller would have to repurchase such
Defaulted Mortgage Loan or REO Property under this Agreement. The Seller shall
have 10 Business Days after receipt of notice to determine whether or not to
consent to such sale. If the Seller does not consent to such sale, the Special
Servicer shall contract with a Determination Party (as defined in the Pooling
and Servicing Agreement). If the related Determination Party determines that
such proposed sale is in accordance with the Servicing Standards and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and subsequent to such sale, a court
of competent jurisdiction determines that Seller was liable under this Agreement
and required to repurchase such Defaulted Mortgage Loan or REO Property in
accordance with the terms hereof, then the Seller shall remit to Purchaser an
amount equal to the difference (if any) between the proceeds of the related
action and the price at which the Seller would have been obligated to pay had
the Seller repurchased such Defaulted Mortgage Loan or REO Property in
accordance with the terms hereof including the costs related to contracting with
the related Determination Party. If the related Determination Party determines
that the sale of the related Defaulted Mortgage Loan or REO Property is not in
accordance with the Servicing Standards and the provisions of the Pooling and
Servicing Agreement with respect to the sale of Defaulted Mortgage Loans and REO
Properties and the Special Servicer subsequently sells such Mortgage Loan or REO
Property, then the Seller will not be liable for any such difference (nor any
cost of contracting with the Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
90 days of the Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made in
full, this paragraph describes the sole remedy available to the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf regarding any such Breach and the Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
(h) With respect to the Mortgage Loan identified on the Mortgage
Loan Schedule as loan number 3, if there is a default by the related Mortgagor
under such Mortgage Loan and such default resulted from the failure of the
tenant known as Presbyterian Hospital to execute that certain lease between the
Mortgagor as landlord and Presbyterian Hospital as tenant for 205,000 square
feet of space at the rental rate of $26.00 per square foot for a term ending in
June 2021, then upon notice of such default from the Purchaser, the Seller shall
repurchase such Mortgage Loan for the Purchase Price of such Mortgage Loan. For
the avoidance of doubt, upon the execution of such lease, the repurchase
obligation referenced in this Section 3(h) shall expire.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's articles of association or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Wickersham & Taft
LLP, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Purchaser, the Seller, the Underwriters and their
respective counsel in their reasonable discretion, shall be duly executed and
delivered by all signatories as required pursuant to the respective terms
thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) A letter from the independent accounting firm of KPMG LLP or
Ernst & Young LLP, as applicable, in form satisfactory to the Purchaser,
relating to certain information regarding the Mortgage Loans and Certificates as
set forth in the Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Seller has, in all material respects, complied with all the
agreements and satisfied all the conditions on its part that are required under
this Agreement to be performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that with respect to the
Seller, the Mortgage Loans, the related Mortgagors and the related Mortgaged
Properties (i) such officer has carefully examined the Specified Portions of the
Prospectus Supplement and nothing has come to his attention that would lead him
to believe that the Specified Portions of the Prospectus Supplement, as of the
date of the Prospectus Supplement, or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, and (ii) such officer
has examined the Specified Portions of the Memorandum and nothing has come to
his attention that would lead him to believe that the Specified Portions of the
Memorandum, as of the date thereof or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein related to the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading. The "Specified
Portions" of the Prospectus Supplement shall consist of Annex A thereto, the
diskette which accompanies the Prospectus Supplement (insofar as such diskette
is consistent with such Annex A) and the following sections of the Prospectus
Supplement (exclusive of any statements in such sections that purport to
summarize the servicing and administration provisions of the Pooling and
Servicing Agreement: "Summary of the Prospectus Supplement-The Parties-The
Mortgage Loan Sellers," "Summary of the Prospectus Supplement-The Mortgage
Loans," "Risk Factors-The Mortgage Loans," and "Description of the Mortgage
Pool-General," "-Mortgage Loan History," "-Certain Terms and Conditions of the
Mortgage Loans," "-Assessments of Property Condition," "Co-Lender Loans,"
"-Additional Mortgage Loan Information," "-Twenty Largest Mortgage Loans," "-The
Mortgage Loan Sellers," "-Underwriting Standards," and "-Representations and
Warranties; Repurchases and Substitutions." The "Specified Portions" of the
Memorandum shall consist of the Specified Portions of the Prospectus Supplement
and the first and second full paragraphs on page "iii" of the Memorandum.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the articles of association and by-laws of the
Seller, and an original or copy of a certificate of good standing of the Seller
issued by the Comptroller of the Currency not earlier than sixty (60) days prior
to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser or any Underwriter within
the meaning of either Section 15 of the Securities Act of 1933, as amended (the
"1933 Act") or Section 20 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), against any and all losses, expenses (including the reasonable
fees and expenses of legal counsel), claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act, the
1934 Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in (A) the Prospectus
Supplement, the Preliminary Prospectus Supplement, the Memorandum, the Diskette
or, insofar as they are required to be filed as part of the Registration
Statement pursuant to the No-Action Letters, any Computational Materials or ABS
Term Sheets with respect to the Registered Certificates, in any revision or
amendment of or supplement to any of the foregoing, (B) any items similar to
Computational Materials or ABS Term Sheets forwarded by the Seller to the
Initial Purchasers, or in any revision or amendment of or supplement to any of
the foregoing or (C) the summaries, reports, documents and other written and
computer materials and all other information regarding the Mortgage Loans or the
Seller furnished by the Seller for review by prospective investors (the items in
(A), (B) and (C) being defined as the "Disclosure Material"), or (ii) arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; but, with respect to the Disclosure Material described in clauses
(A) and (B) of the definition thereof, only if and to the extent that (I) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement and the Preliminary Prospectus
Supplement, including without limitation Annex A thereto, the Memorandum, the
Diskette, any Computational Materials and ABS Term Sheets with respect to the
Registered Certificates and any items similar to Computational Materials and ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission of a material fact occurring in, or with respect
to, such Disclosure Material, is with respect to, or arises out of or is based
upon an untrue statement or omission of a material fact with respect to, the
information regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties and/or the Seller set forth in the Specified Portions of
each of the Prospectus Supplement, the Preliminary Prospectus Supplement and the
Memorandum, (III) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 or (IV) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon any other written information concerning the characteristics
of the Mortgage Loans, the related obligors on the Mortgage Loans or the related
Mortgaged Properties furnished to the Purchaser or the Underwriters by the
Seller; provided that the indemnification provided by this Section 7 shall not
apply to the extent that such untrue statement or omission of a material fact
was made as a result of an error in the manipulation of, or in any calculations
based upon, or in any aggregation of the information regarding the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties set forth
in the Data File or Annex A to the Prospectus Supplement or the Preliminary
Prospectus Supplement to the extent such information was not materially
incorrect in the Data File or such Annex A, as applicable, including without
limitation the aggregation of such information with comparable information
relating to the Other Mortgage Loans. Notwithstanding the foregoing, the
indemnification provided in this Section 7(a) shall not inure to the benefit of
any Underwriter or Initial Purchaser (or to the benefit of any person
controlling such Underwriter or Initial Purchaser) from whom the person
asserting claims giving rise to any such losses, claims, damages, expenses or
liabilities purchased Certificates if (x) the subject untrue statement or
omission or alleged untrue statement or omission made in any Disclosure Material
(exclusive of the Prospectus or any corrected or amended Prospectus or the
Memorandum or any corrected or amended Memorandum) is eliminated or remedied in
the Prospectus or the Memorandum (in either case, as corrected or amended, if
applicable), as applicable, and (y) a copy of the Prospectus or Memorandum (in
either case, as corrected or amended, if applicable), as applicable, shall not
have been sent to such person at or prior to the written confirmation of the
sale of such Certificates to such person, and (z) in the case of a corrected or
amended Prospectus or Memorandum, such Underwriter or Initial Purchaser received
written notice of such correction or amendment prior to the written confirmation
of such sale. The information described in clauses (I) through (IV) above is
collectively referred to as the "Seller Information". The Seller shall, subject
to clause (c) below, reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
This indemnity will be in addition to any liability which the Seller may
otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-83930 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated June 12,
2003, as supplemented by the prospectus supplement dated June 24, 2003 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the prospectus
supplement dated June 12, 2003 relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated June 24, 2003, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class B and Class C 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 Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated, and Kidder
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 "Kidder Letters"); "ABS Term Sheets" shall
have the meaning assigned thereto in the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the Kidder
letters, the "No-Action Letters"); "Diskette" shall mean the diskette or compact
disc attached to each of the Prospectus and the Memorandum; and "Data File"
shall mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letters dated June 24, 2003 and rendered
by KPMG LLP or Ernst & Young LLP, as the case may be (a "hard copy" of which
Data File was initialed on behalf of the Seller and the Purchaser).
(c) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against the Seller (the "indemnifying party") under this Section 7, notify
the indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability that
it may have to any indemnified party under this Section 7 (except to the extent
that such omission has prejudiced the indemnifying party in any material
respect) or from any liability which it may have otherwise than under this
Section 7. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel selected by the indemnifying party and reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the indemnified
party of counsel, the indemnifying party will not be liable for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the Underwriters,
representing all the indemnified parties under Section 7(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii). Unless it shall assume the
defense of any proceeding, an indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, any of their respective directors or officers, or any person
controlling the Purchaser or the Underwriters, and (iii) acceptance of and
payment for any of the Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Wachovia Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a Prospectus, Preliminary Prospectus Supplement and Memorandum
relating to the Certificates; (iii) the initial fees, costs, and expenses of the
Trustee (including reasonable attorneys' fees); (iv) the filing fee charged by
the Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters; provided, however, Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the expense of recording
any assignment of Mortgage or assignment of Assignment of Leases as contemplated
by Section 2 hereof with respect to such Seller's Mortgage Loans. All other
costs and expenses in connection with the transactions contemplated hereunder
shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum, the Preliminary Prospectus Supplement and the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 17. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all respects
to the same extent as if they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP and Ernst & Young LLP in making available all information and
taking all steps reasonably necessary to permit such accountants to deliver the
letters required by the Underwriting Agreement.
SECTION 21. Repurchase of ED Loan. If the Purchaser or the Master
Servicer notifies the Seller that the borrower under the ED Loan (as defined in
the Pooling and Servicing Agreement) intends to defease the ED Loan prior to the
second anniversary of the Startup Day (as defined in the Pooling and Servicing
Agreement), the Seller shall promptly repurchase the ED Loan at the related
Purchase Price not less than 10 days prior to the date scheduled for such
defeasance in accordance with the directions of the Master Servicer. Upon the
repurchase of the ED Loan pursuant to this Section 21, the Purchaser shall
effect, and the Seller shall pay all reasonable costs and expenses, including
the costs of any opinions of counsel under the Pooling and Servicing Agreement,
relating to, a "qualified liquidation" of the ED Loan REMIC in accordance with
the REMIC Provisions. The parties hereto understand and acknowledge that, in the
event the Seller fails to purchase the ED Loan as required by the foregoing, the
Master Servicer shall sell the ED Loan from the Trust Fund at the highest
available price and shall effect a "qualified liquidation" of the ED Loan REMIC,
within the meaning of Section 860F(a)(4) of the Code, as soon as reasonably
practicable and, in any event, prior to the date of such early defeasance. In
such event, the Seller shall indemnify the Trust against any amount by which the
Purchase Price exceeds the proceeds received by the Trust with respect to such
sale and liquidation of the ED Loan.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Charles L. Culbreth
------------------------------------
Name: Charles L. Culbreth
Title: Managing Director
Address for Notices:
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0166
Telecopier No.: (704) 383-1942
Telephone No.: (704) 374-6161
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ William J. Cohane
------------------------------------
Name: William J. Cohane
Title: Vice President
Address for Notices:
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288-0166
Telecopier No.: (704) 383-1942
Telephone No.: (704) 374-6161
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule, the phrases "to the knowledge of the
Seller" or "to the Seller's knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. Also for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. Upon consummation of the transactions contemplated by the Mortgage
Loan Purchase Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to such
Mortgage Loan (other than those rights to servicing and related
compensation as reflected in the Mortgage Loan Schedule) free and clear of
any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an assignment of leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums or
yield maintenance charges, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a) the lien
of current real property taxes, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). In the case of each Mortgage Loan secured by a hotel,
(i) the personal property securing the Mortgage Loan is all personal
property reasonably necessary to operate the hotel and (ii) the related
Mortgage Loan documents contain such provisions as are necessary and UCC
Financing Statements have been filed as necessary, in each case, to
perfect a valid first security interest in Mortgagor's related operating
revenues with respect to such Mortgaged Property. Notwithstanding any of
the foregoing, no representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of
UCC Financing Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
comprehensive general liability insurance against claims for personal and
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property in an amount customarily required by prudent
commercial mortgage lenders, but not less than $1 million. An
architectural or engineering consultant has performed an analysis of each
of the Mortgaged Properties located in seismic zones 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475 year lookback with a 10% probability of exceedance
in a 50 year period. If the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained by an insurer
rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or "Baa3" (or the equivalent) from Moody's.
If the Mortgaged Property is located in Florida or within 25 miles of the
coast of Texas, Louisiana, Mississippi, Alabama, Georgia, North Carolina
or South Carolina such Mortgaged Property is insured by windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of such Mortgage Loan and (ii) 100% of the full
insurable value, or 100% of the replacement cost, of the improvements
located on the related Mortgaged Property. Such insurance is required by
the Mortgage or related Mortgage Loan documents and was in full force and
effect with respect to each related Mortgaged Property at origination and
to the knowledge of the Seller, all insurance coverage required under each
Mortgage, is in full force and effect with respect to each related
Mortgaged Property; and no notice of termination or cancellation with
respect to any such insurance policy has been received by the Seller; and
except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss will be applied either to
(1) the repair or restoration of the related Mortgaged Property with
mortgagee or a third party custodian acceptable to the mortgagee having
the right to hold and disburse the proceeds as the repair or restoration
progresses, other than with respect to amounts that are customarily
acceptable to commercial and multifamily mortgage lending institutions, or
(2) the reduction of the outstanding principal balance of the Mortgage
Loan and accrued interest thereon. To the Seller's actual knowledge, the
insurer with respect to each policy is qualified to write insurance in the
relevant jurisdiction to the extent required. The insurance policies
contain a standard mortgagee clause naming the originator of the related
Mortgage Loan, its successors and assigns as loss payees in the case of
property insurance policies and additional insureds in the case of
liability insurance policies and provide that they are not terminable and
may not be reduced without 30 days prior written notice to the mortgagee
(or, with respect to non-payment of premiums, 10 days prior written notice
to the mortgagee) or such lesser period as prescribed by applicable law.
Each Mortgage requires that the Mortgagor maintain insurance as described
above or permits the mortgagee to require insurance as described above,
and permits the mortgagee to purchase such insurance at the Mortgagor's
expense if the Mortgagor fails to do so. Additionally, for any Mortgage
Loan having an unpaid principal balance equal to or greater than
$15,000,000, the Insurer has a claims paying ability rating from S&P of
not less than "A-" (or the equivalent) or Moody's of not less than "A3"
(or the equivalent) or A.M. Best of not less than "A-:V" (or the
equivalent).
14. (A) Other than payments due but not yet 30 days or more delinquent, there
is no material default, breach, violation or event of acceleration
existing under the related Mortgage or the related Mortgage Note, and to
the Seller's actual knowledge no event (other than payments due but not
yet delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration, provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II, and (B) the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and no such waiver has
been granted since the date upon which the due diligence file related to
the applicable Mortgage Loan was delivered to Allied Capital Corporation,
and pursuant to the terms of the related Mortgage or the related Mortgage
Note and other documents in the related Mortgage File no Person or party
other than the holder of such Mortgage Note may declare any event of
default or accelerate the related indebtedness under either of such
Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the prior
written consent of the holder of the Mortgage Note, each related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3)of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow of 100% or more of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
borrower has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related borrower or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier or insurance broker issuing such
policy prior to the issuance of such policy. The Mortgage Loan documents
require the borrower to comply with all applicable environmental laws and
each Mortgagor has agreed to indemnify the mortgagee for any losses
resulting from any material, adverse environmental condition or failure of
the Mortgagor to abide by such laws or has provided environmental
insurance.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, redemption, liquidation or similar law affecting
the right of creditors and the application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan and contains no equity participation by
the lender or shared appreciation feature and does not provide for any
contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property or, other than the ARD Loans,
provide for negative amortization. The Seller holds no preferred equity
interest.
23. The Mortgage contains a "due on sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of the
Mortgage Loan if, without the prior written consent of the holder of the
Mortgage, either the related Mortgaged Property, or any equity interest in
the related Mortgagor, is directly or indirectly transferred, sold or
pledged, other than by reason of family and estate planning transfers,
transfers of less than a controlling interest (as such term is defined in
the related Mortgage Loan documents) in the Mortgagor, issuance of
non-controlling new equity interests, transfers to an affiliate meeting
the requirements of the Mortgage Loan, transfers among existing members,
partners or shareholders in the Mortgagor, transfers among affiliated
Mortgagors with respect to Crossed Loans or multi-property Mortgage Loans
or transfers of a similar nature to the foregoing meeting the requirements
of the Mortgage Loan (such as pledges of ownership interests that do not
result in a change of control). The Mortgage requires the Mortgagor to pay
all reasonable fees and expenses associated with securing the consents or
approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to Allied Capital Corporation.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage. The terms of the related Mortgage do not provide for release of
any material portion of the Mortgaged Property from the lien of the
Mortgage except (a) in consideration of payment therefor of not less than
125% of the related allocated loan amount of such Mortgaged Property, (b)
upon payment in full of such Mortgage Loan, (c) upon defeasance permitted
under the terms of such Mortgage Loan by means of substituting for the
Mortgaged Property (or, in the case of a Mortgage Loan secured by multiple
Mortgaged Properties, one or more of such Mortgaged Properties)
"government securities", as defined in the Investment Company Act of 1940,
as amended, sufficient to pay the Mortgage Loan in accordance with its
terms, (d) upon substitution of a replacement property with respect to
such Mortgage Loan as set forth on Schedule 26, (e) where release is
conditional upon the satisfaction of certain underwriting and legal
requirements which would be acceptable to a reasonably prudent commercial
mortgage lender and the payment of a release price that represents at
least 125% of the appraised value of such Mortgaged Property or (f)
releases of unimproved out-parcels or other portions of the Mortgaged
Property which will not have a material adverse effect on the underwritten
value of the security for the Mortgage Loan and which were not afforded
any value in the appraisal obtained at the origination of the Mortgage
Loan.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws constitutes a legal
non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts customarily required by
prudent commercial mortgage lenders, or such non-conformity does not
materially and adversely affect the use, operation or value of the
Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or, if so located, the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect in an amount no less than the lesser of (i) the original
principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the borrower to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor who is a natural person
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
42. With respect to such Mortgage Loan, any prepayment premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. None of the Mortgaged Properties is encumbered, and none of the Mortgage
Loan documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. Each Mortgage requires the Mortgagor upon request to provide the owner or
holder of the Mortgage with quarterly (except for some Mortgage Loans with
an original principal balance less than $5,000,000) and annual operating
statements (or a balance sheet and statement of income and expenses, rent
rolls (if there is more than one tenant) and related information, which
annual financial statements for all Mortgage Loans with an outstanding
principal balance greater than $20,000,000 are required to be audited by
an independent certified public accountant.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to (i) or (ii), to the extent required by
such policy or to the extent the failure to make any such disclosure
or deliver any such report would materially and adversely affect the
Mortgagor's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insured is in full force and effect;
(d) such insurance has a term of at least 5 years beyond the maturity
date (or the Anticipated Repayment Date for ARD Loans) of such
Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment for
lead-based paint ("LBP") (in the case of a multifamily property
built prior to 1978), asbestos-containing materials ("ACM") (in the
case of any property built prior to 1985) and radon gas ("RG") (in
the case of a multifamily property) at such Mortgaged Property and
(ii) if such report disclosed the existence of a material and
adverse LBP, ACM or RG environmental condition or circumstance
affecting such Mortgaged Property, then, except as otherwise
described on Schedule II, (A) the related Borrower was required to
remediate such condition or circumstance prior to the closing of the
subject Mortgage Loan, or (B) the related Borrower was required to
provide additional security reasonably estimated to be adequate to
cure such condition or circumstance, or (C) such report did not
recommend any action requiring the expenditure of any material funds
and the related Mortgage Loan documents require the related Borrower
to establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan;
and
(f) rights under such policy inure to the benefit of the Purchaser.
53. Each Mortgage Loan is secured by the fee interest in the related Mortgaged
Property, except with respect to loan number 3 listed on the Mortgage Loan
Schedule, which Mortgage Loans are secured by the interest of the related
Mortgagor as a lessee under a ground lease of a Mortgaged Property (a
"Ground Lease") (the term Ground Lease shall mean such ground lease, all
written amendments and modifications, and any related estoppels or
agreements from the ground lessor and, in the event the Mortgagor's
interest is a ground subleasehold, shall also include not only such ground
sublease but also the related ground lease), but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") and:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent
of the lessor thereunder is required, it has been obtained prior to
the Closing Date, and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns, in a
manner that would materially adversely affect the security provided
by the related Mortgage; and there has been no material change in
the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related
Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Title Exceptions;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
mortgagee and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Cut-Off Date) and, in
the event that it is so assigned, is further assignable by the
mortgagee and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor (or, if such consent
is required, it has been obtained prior to the Cut-Off Date);
(d) As of the Closing Date such Ground Lease is in full force and
effect, and the Seller has not received notice (nor is the Seller
otherwise aware) that any default has occurred under such Ground
Lease as of the Cut-Off Date;
(e) Seller or its agent has provided the lessor under the Ground Lease
with notice of its lien, and such Ground Lease requires the lessor
to give notice of any default by the lessee to the mortgagee, and
such Ground Lease, further provides that no notice of termination
given under such Ground Lease is effective against such mortgagee
unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity to cure any default under such Ground Lease (including
where necessary, sufficient time to gain possession of the interest
of the lessee under the Ground Lease), which is curable after the
receipt of written notice of any such default, before the lessor
thereunder may terminate such Ground Lease, and all of the rights of
the Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised by or
on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or more optional
renewal terms, which, under all circumstances, may be exercised, and
will be enforceable, by the Seller, its successors or assigns) which
extends not less than 10 years beyond the amortization term of the
related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
the mortgagee under such Mortgage Loan upon termination of such
Ground Lease for any reason, including rejection of such Ground
Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds will be applied either (i)
to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage Loan or a trustee
appointed by it having the right to hold and disburse such proceeds
as the repair or restoration progresses (except in such cases where
a provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (ii) to the payment of the
outstanding principal balance of such Mortgage Loan together with
any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground
Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Exceptions to Representation 8
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Loans Description of Exception
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1 Lloyd Center Each of these Mortgage Loans is
19 Shoppes of Parkland cross-collateralized and
38 Hilton-Norfolk Airport cross-defaulted with its related
139 Laurel Pointe Apartments Companion Loan, which is not included
148 Timberlake Apartments in the Mortgage Pool. In addition,
each Companion Loan is secured by the
same Mortgaged Property and the same
Mortgage Loan securing its related
Mortgage Loan.
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Exceptions to Representation 11
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Loans Description of Exception
- --------------------------------------------------------------------------------
67 Mini U Storage - Fairfax Station The required engineering escrow for
this Mortgaged Property is for an
amount that is less than 125% of the
estimated repair cost .
- --------------------------------------------------------------------------------
90 Rite Aid - Las Vegas No engineering assessments were
111 Fairbrook Senior Housing performed on these Mortgaged
Apartments Properties.
139 Laurel Pointe Apartments
148 Timberlake Apartments
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Exceptions to Representation 13
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Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center The Mortgaged Property is covered by
comprehensive general liability
insurance against claims for personal
and bodily injury, death or property
damage occurring on, in or about the
related Mortgaged Property in an
amount customarily required by prudent
commercial mortgage lenders, but not
less than $300,000 with no general
aggregate limit and $60,000,000 excess
liability coverage. The insurers
endeavor to mail notice of termination
30 days prior to termination.
- --------------------------------------------------------------------------------
3 673 First Avenue These Mortgaged Properties do not have
136 Rite Aid - Baltimore insurance coverage for windstorm
damage.
- --------------------------------------------------------------------------------
80 Walgreens - Elgin There is no property or business
83 Walgreens - Colorado Springs interruption insurance on these
89 Walgreens - Tropicana Avenue Mortgaged Properties. Walgreens
96 Walgreens - Omaha self-insures as permitted by the loan
103 Walgreens - Dickinson, TX documents.
- --------------------------------------------------------------------------------
90 Rite Aid - Las Vegas
107 Rite Aid - Colonie These Mortgage Loans require the
136 Rite Aid - Baltimore tenant rather than the Mortgagor to
provide insurance.
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Exception to Representation 22
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Loans Description of Exception
- --------------------------------------------------------------------------------
111 Fairbrook Senior Housing For each of these Mortgage Loans,
Apartments there is equity participation by the
139 Laurel Pointe Apartments lender.
148 Timberlake Apartments
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Exception to Representation 23
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Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center Subject to satisfaction of conditions
specified in the loan documents, the
related Mortgaged Property or a
controlling equity interest in the
related Mortgagor can be directly or
indirectly transferred to a qualified
transferee (as defined in the loan
documents) without the prior written
consent of the holder of the Mortgage.
- --------------------------------------------------------------------------------
12 90 & 110 South Bedford Road The Mortgage Loan for this property
provides that, at all times, control
and operations must be vested in the
same individuals who control Mt. Kisco
Medical Group (or another party
acceptable to the lender) and all
owners of Mt. Kisco Medical Group must
be corresponding owners in the
borrower.
- --------------------------------------------------------------------------------
69 Bannockburn Mediplex Office The Mortgage Loan for this property
Building provides that member interests in the
borrower are freely transferable so
long as Jerry J. Jaeger remains at all
times the sole manager of the borrower.
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110 Shockoe Place The Mortgage Loan for this property
permits the transfer of certain member
interests and the substitution or
addition of certain members.
- --------------------------------------------------------------------------------
111 Fairbrook Senior Housing These Mortgage Loans permit the
Apartments removal and replacement of the General
139 Laurel Pointe Apartments Partner without the consent of the
148 Timberlake Apartments lender.
- --------------------------------------------------------------------------------
139 Laurel Pointe Apartments These Mortgage Loans permit the
148 Timberlake Apartments transfer of interests in the borrower,
to an entity meeting FNMA DUS
guidelines, without the consent of the
lender.
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Exception to Representation 25
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Loans Description of Exception
- --------------------------------------------------------------------------------
90 Rite Aid - Las Vegas These Mortgaged Properties were not
107 Rite Aid - Colonie inspected by or on behalf of the
136 Rite Aid - Baltimore originator or an affiliate during the
12 month period prior to their
origination date.
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Exception to Representation 29
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Loans Description of Exception
- --------------------------------------------------------------------------------
8 Arrowhead Highlands Apartments The requirement for a
non-consolidation opinion was waived
for this Mortgage Loan.
- --------------------------------------------------------------------------------
14 Village on the Hill The borrower for this Mortgage Loan is
a two member limited liability
company, but the ownership interest of
one of the members is 0.00%, providing
for no ownership or control interest
in the borrower. To the extent this
structure is viewed as a single member
limited liability company, the
organizational documents do not
provide that the borrower shall not
dissolve or liquidate upon the
bankruptcy, dissolution, liquidation
or death of the controlling member.
In addition, no opinion of counsel has
been obtained regarding the continued
existence of the borrower upon the
bankruptcy, dissolution, liquidation
or death of the controlling member.
- --------------------------------------------------------------------------------
22 Archstone Southpointe No opinion of counsel has been
obtained for this Mortgaged Property
regarding the continued existence of
the borrower upon the bankruptcy,
dissolution, liquidation or death of
the member.
- --------------------------------------------------------------------------------
51 Calder Commons The Single Purpose Entity requirements
were waived for this Mortgaged
Property.
- --------------------------------------------------------------------------------
Exception to Representation 31
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
7 16 West 61st Street There is a personal injury claim
against the borrower for this
Mortgaged Property. The plaintiff has
filed a lawsuit and is seeking damages
in the amount of $6 million.
- --------------------------------------------------------------------------------
Exception to Representation 34
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center These Mortgage Loans are
19 Shoppes of Parkland cross-collateralized and
38 Hilton - Norfolk Airport cross-defaulted with their related
139 Laurel Pointe Apartments Companion Loans, which are not
148 Timberlake Apartments included in the Mortgage Pool. Each
related Companion Loan is secured by
the same Mortgaged Property pursuant to
the same mortgage instrument.
- --------------------------------------------------------------------------------
This Mortgage Loan is
111 Fairbrook Senior Housing cross-collateralized with subordinate
Apartments debt on the Mortgaged Property, which
is not included in the Mortgage Pool.
- --------------------------------------------------------------------------------
Exception to Representation 40
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center There is no natural person guarantor
for this loan generally or providing
the fraud and/or intentional
misrepresentation and environmental
indemnity guarantees specifically.
- --------------------------------------------------------------------------------
3 673 First Avenue The guarantor for each of these
5 Irongate Apartments Mortgaged Properties is not a natural
7 16 West 61st Street person.
12 90 & 110 South Bedford Road
14 Village on the Hill
22 Archstone Southpoint Apartments
35 Market Place Shopping Center
67 Mini U Storage - Fairfax Station
76 Springfield Self-Storage
94 Rancho Palomino Medical Center
121 Mini U Storage - Maple Shade
139 Laurel Pointe Apartments
- --------------------------------------------------------------------------------
Exception to Representation 43
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
107 Rite Aid - Colonie This Mortgage Loan permits defeasance
earlier than two years following the
Closing Date.
- --------------------------------------------------------------------------------
Exception to Representation 46
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center
19 Shoppes of Parkland These Mortgaged Properties are
38 Hilton - Norfolk Airport currently encumbered with additional
111 Fairbrooke Senior Housing debt.
Apartments
148 Timberlake Apartments
- --------------------------------------------------------------------------------
Exception to Representation 50
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
1 Lloyd Center The borrower is required to provide
monthly rent roll and operating
statements and audited annual
financial statements.
- --------------------------------------------------------------------------------
3 673 First Avenue The annual financial statements for
4 Hamilton House Apartments these Mortgaged Properties are not
8 Arrowhead Highlands Apartments required to be audited by an
independent certified public
accountant.
- --------------------------------------------------------------------------------
Exception to Representation 51
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
140 Meadowbrook Mobile Home Park This
Mortgaged Property has an on-site
public well and septic facility and is
served by a public electrical utility.
- --------------------------------------------------------------------------------
Exception to Representation 53
- ------------------------------
- --------------------------------------------------------------------------------
Loans Description of Exception
- --------------------------------------------------------------------------------
3 673 First Avenue With respect to Representation 53(g),
the amortization term of this Mortgage
Loan ends in February 2030 and the
Ground Lease expires in August 2037.
With respect to Representation 53(h)
the Mortgage Loan requires the lessor
to enter into a new lease with the
Mortgagee upon termination of the
Ground Lease for a default or upon the
rejection of the Ground Lease in
bankruptcy, but not explicitly for "any
reason".
- --------------------------------------------------------------------------------
Mortgage Loan Loan Group
Number Number Property Name Address City State
- ------------------------------------------------------------------------------------------------------------------------------
1 1 Lloyd Center 2201 Lloyd Center Portland OR
2 1 One South Broad Street One South Broad Street Philadelphia PA
3 1 673 First Avenue 673 First Avenue New York NY
4 2 Hamilton House Apartments 1255 New Hampshire Washington DC
Avenue, NW
5 1 Irongate Apartments 3301 Arena Boulevard Sacramento CA
6 1 Columbiana Station Shopping Center 234, 238, 240, 242, 244, Columbia SC
246, 301 Harbinson
Boulevard and 1005,
1007, 1009, 1110, 1120,
1230, 1260 Bower Parkway
7 1 16 West 61st Street 16 West 61st Street New York NY
8 2 Arrowhead Highlands Apartments 5901 West Behrend Drive Glendale AZ
11 1 2175 K Street, N.W. 2175 K Street, N.W. Washington DC DC
12 1 90 & 110 South Bedford Road 90-110 South Bedford Road Mount Kisco NY
14 1 Village on the Hill 9 School Street Framingham MA
18 1 College Grove Shopping Center 3412 College Avenue San Diego CA
19 1 Shoppes of Parkland 5901-5993 Hillsboro Parkland FL
Boulevard and 7011-7171
North State Road 7
22 2 Archstone Southpoint Apartments 1800 Southpoint Crossing Durham NC
Drive
23 1 WOW - Chippewa & Hobart Various Various WI
23.1 WOW-Chippewa Falls 2521 & 2621 Olson Drive Chippewa Falls WI
23.2 WOW-Hobart 1120 O'Hare Boulevard Hobart WI
24 1 Kearny Mesa Crossroads 3750 & 3760 Convoy Street San Diego CA
26 2 Valley Stream Village I Apartments 110 Valley Stream Drive Christiana DE
28 1 Gardens Towne Square 4200 Northlake Boulevard Palm Beach FL
Gardens
29 2 Forest Cove Apartments 2401 Repsdorph Road Seabrook TX
30 1 Rio Vista Building 8885 Rio San Diego Drive San Diego CA
32 2 Bermuda Villas Apartments 7325 South West 82nd Miami FL
Street
33 1 8989 Rio Vista Plaza 8989 Rio San Diego Drive San Diego CA
35 1 Market Place Shopping Center 1-26 Plaza Drive Fairview Heights IL
37 1 Village Shoppes of Flowery Branch 5900 Spout Springs Road Flowery Branch GA
38 1 Hilton Norfolk Airport 1500 North Military Norfolk VA
Highway
45 1 New Market 267 Highway 421 Boone NC
51 2 Calder Commons 520 East Calder Way State College PA
56 1 Lincoln Road Plaza 825-845 Lincoln Road Miami Beach FL
58 1 River Chase Office Center 4431 North Front Street Harrisburg PA
67 1 Mini U Storage- Fairfax Station 10930 Clara Barton Drive Fairfax Station VA
69 1 Bannockburn Mediplex Office Building 2151 Waukegan Road Bannockburn IL
70 1 York Farm Estates 1870 Baldwin Road Yorktown Heights NY
72 1 2301 Glades 2301 Glades Road Boca Raton FL
75 2 Valley Stream Village II Apartments 110 Valley Stream Drive Christiana DE
76 1 Springfield Self Storage 7711 Loisdale Road Springfield VA
79 2 Miller Lake Apartments 5400-5500 Southwest 77th Miami FL
Court
80 1 Walgreens - Elgin 1700 Larkin Avenue Elgin IL
83 1 Walgreens - Colorado Springs 1730 Platte Avenue East Colorado Springs CO
89 1 Walgreens - Tropicana Avenue 4905 West Tropicana Las Vegas NV
Avenue
90 1 Rite Aid - Las Vegas 1815 East Flamingo Road Las Vegas NV
91 2 Schooner Landing 7100 Shoreline Drive Stockton CA
92 1 Palm Valley Pavilions East 1375-1475 North Goodyear AZ
Litchfield Road
94 1 Rancho Palomino Medical Center 630 South Rancho Drive Las Vegas NV
95 1 Randhurst Crossings Shopping Center 1 West Rand Road Mount Prospect IL
96 1 Walgreens - Omaha 8989 West Dodge Road Omaha NE
102 2 Wilson Acres Apartments 1806 East First Street Greenville NC
103 1 Walgreens - Dickinson 100 F.M. 646 Dickinson TX
105 1 1230 48th Avenue 1230 48th Avenue Menominee MI
107 1 Rite Aid - Colonie 1863 Central Avenue Colonie NY
108 1 Shurgard - Brandon 1010 West Lumsden Road Brandon FL
110 2 Shockoe Place 1900 East Franklin Street Richmond VA
111 2 Fairbrooke Senior Housing Apartments 700 West Bel Air Avenue Aberdeen MD
112 2 La Playa Apartments 1033-1053 2nd Street Lafayette CA
116 1 Marshalls - Lodi 2449 West Kettleman Lane Lodi CA
119 1 Shurgard - Oldsmar 3657 Tampa Road Oldsmar FL
121 1 Mini U Storage-Maple Shade 2481 Route 73 South Maple Shade NJ
128 1 CVS - Shippensburg 701 East King Street Shippensburg PA
134 1 1407-1413 East Cary Street 1407-1413 East Cary Richmond VA
Street
135 1 La Posada Apartments 241 Lafayette Circle Layfayette CA
136 1 Rite Aid - Baltimore 700 West Saratoga Street Baltimore MD
139 2 Laurel Pointe Apartments 100 Laurel Pointe Circle Salisbury NC
140 1 Meadowbrook Mobile Home Park 1331 West Danby Road Newfield NY
141 2 Nob Hill Apartments 500 McIntire Road Charlottesville VA
148 2 Timberlake Apartments 400 Timberlake View Inman SC
Circle
Cut-Off Date
Mortgage Loan Loan Balance Monthly P&I Mortgage Number of Unit of
Number Zip Code County ($) Payments ($) Grace Days Rate (%) Units Measure
- ---------------------------------------------------------------------------------------------------------------------------
1 97232 Multnomah 69,922,221 393,946 0 5.4200 1,229,140 Sq. Ft.
2 19107 Philadelphia 44,919,182 272,117 0 6.0800 464,420 Sq. Ft.
3 10016 New York 35,000,000 218,498 0 5.6700 426,596 Sq. Ft.
4 20036 District of 28,902,057 158,348 0 5.1500 304 Units
Columbia
5 95834 Sacramento 27,000,000 158,423 0 5.8000 280 Units
6 29212 Lexington 25,900,000 (IO) 0 4.0400 270,187 Sq. Ft.
7 10023 New York 24,953,568 148,764 0 5.9300 112,080 Sq. Ft.
8 85308 Maricopa 24,200,000 136,647 0 5.4500 336 Units
11 20037 District of 18,250,000 108,949 0 5.9600 100,837 Sq. Ft.
Columbia
12 10549 Westchester 17,965,895 106,074 0 5.8400 120,211 Sq. Ft.
14 01701 Middlesex 17,000,000 96,204 0 5.4700 184 Units
18 92115 San Diego 16,281,990 92,039 0 5.4500 193,912 Sq. Ft.
19 33067 Broward 15,968,669 92,763 0 5.6900 145,652 Sq. Ft.
22 27713 Durham 15,000,000 83,855 0 5.3600 288 Units
23 Various Various 14,971,010 87,536 0 5.7500 753,000 Sq. Ft.
23.1 54729 Chippewa 243,000 Sq. Ft.
23.2 54115 Brown 510,000 Sq. Ft.
24 92111 San Diego 14,967,091 81,996 0 5.1600 126,756 Sq. Ft.
26 19702 New Castle 14,220,416 80,196 0 5.4200 243 Units
28 33410 Palm Beach 13,959,816 83,398 0 5.9400 153,067 Sq. Ft.
29 77586 Harris 13,173,063 74,948 0 5.5000 277 Units
30 92108 San Diego 12,971,419 70,983 0 5.1500 108,477 Sq. Ft.
32 33143 Miami-Dade 11,986,107 65,893 0 5.2000 224 Units
33 92108 San Diego 11,976,036 68,889 0 5.6000 78,167 Sq. Ft.
35 62208 Saint Clair 10,777,961 61,321 0 5.5000 210,553 Sq. Ft.
37 30542 Hall 10,527,461 60,623 0 5.6000 92,883 Sq. Ft.
38 23502 Hampton 10,334,434 64,987 0 5.7300 249 Rooms
45 28607 Watauga 8,090,587 44,378 0 5.1800 134,220 Sq. Ft.
51 16801 Centre 7,234,558 40,260 0 5.3000 87 Units
56 33139 Miami-Dade 6,974,213 41,924 0 5.9900 21,213 Sq. Ft.
58 17110 Dauphin 6,786,771 39,553 0 5.7200 66,664 Sq. Ft.
67 22039 Fairfax 6,055,668 37,535 0 5.5800 828 Units
69 60015 Lake 6,000,000 35,483 0 5.6200 40,849 Sq. Ft.
70 10598 Westchester 5,986,529 32,393 0 5.0500 77 Units
72 33431 Palm Beach 5,625,000 33,472 0 5.9300 19,998 Sq. Ft.
75 19702 New Castle 5,349,062 30,433 0 5.5000 81 Units
76 22150 Fairfax 5,327,132 34,046 0 5.8700 583 Units
79 33155 Miami-Dade 4,835,281 26,195 0 5.0500 108 Units
80 60123 Kane 4,790,885 28,256 0 5.8300 14,490 Sq. Ft.
83 80909 El Paso 4,655,116 29,836 0 5.9000 15,120 Sq. Ft.
89 89103 Clark 4,095,918 24,582 0 6.0000 15,120 Sq. Ft.
90 89119 Clark 4,074,729 30,738 0 6.9100 16,708 Sq. Ft.
91 95219 San Joaquin 3,995,149 21,351 0 4.9500 114 Units
92 85338 Maricopa 3,975,279 23,343 0 5.7500 35,188 Sq. Ft.
94 89106 Clark 3,888,032 22,438 0 5.6200 29,306 Sq. Ft.
95 60056 Cook 3,869,709 23,382 0 6.0000 17,207 Sq. Ft.
96 68114 Douglas 3,778,860 22,721 0 6.0000 14,560 Sq. Ft.
102 27858 Pitt 3,476,176 23,977 0 5.4500 146 Units
103 77539 Galveston 3,426,246 19,475 0 5.5000 13,650 Sq. Ft.
105 49858 Menominee 3,273,206 24,121 0 6.2500 220,631 Sq. Ft.
107 12205 Albany 3,109,158 24,756 0 7.3500 11,180 Sq. Ft.
108 33511 Hillsborough 3,096,620 17,640 0 5.5200 588 Units
110 23223 Richmond City 3,047,339 18,322 0 6.0000 46 Units
111 21001 Harford 2,844,409 23,984 10 9.3100 122 Units
112 94549 Contra Costa 2,824,287 16,157 0 5.5500 43 Units
116 95242 San Joaquin 2,638,944 18,985 0 6.0000 29,000 Sq. Ft.
119 34677 Pinellas 2,347,437 13,373 0 5.5200 473 Units
121 08052 Burlington 2,196,756 13,987 0 5.8600 429 Units
128 17257 Cumberland 1,951,664 12,509 0 5.9000 10,880 Sq. Ft.
134 23219 Richmond City 1,686,238 9,851 0 5.7500 23,613 Sq. Ft.
135 94549 Contra Costa 1,666,629 9,535 0 5.5500 20 Units
136 21201 Baltimore City 1,655,676 14,194.98 0 6.8500 11,180 Sq. Ft.
(steps) (2)
139 39206 Rowan 1,607,068 12,585 15 8.6250 100 Units
140 14867 Tompkins 1,599,407 11,786 0 6.2500 209 Pads
141 22902 Charlottesville 1,596,735 9,085 0 5.5000 24 Units
City
148 29349 Spartanburg 1,391,141 10,951 10 8.6250 64 Units
Original Term Remaining Term Stated Original Ground Master
Mortgage Loan to Maturity or to Maturity or Maturity Date Amort Term Remaining Amort Lease Servicing
Number ARD (Mos.) ARD (Mos.) or ARD (Mos.) Term (Mos.) (Y/N) Fee Rate (%)
- -----------------------------------------------------------------------------------------------------------------------------
1 120 119 11-Jun-2013 360 359 N 0.02000
2 120 118 11-May-2013 360 358 N 0.02000
3 120 115 11-Feb-2013 300 300 Y 0.02000
4 120 117 11-Apr-2013 360 357 N 0.02000
5 120 117 11-Apr-2013 360 360 N 0.02000
6 84 83 11-Jun-2010 (IO) (IO) N 0.02000
7 120 118 11-May-2013 360 358 N 0.02000
8 120 117 11-Apr-2013 360 360 N 0.02000
11 120 118 11-May-2013 360 360 N 0.02000
12 120 118 11-May-2013 360 358 N 0.02000
14 120 118 11-May-2013 360 360 N 0.02000
18 120 119 11-Jun-2013 360 359 N 0.02000
19 120 118 11-May-2013 360 358 N 0.02000
22 120 117 11-Apr-2013 360 360 N 0.02000
23 120 118 11-May-2013 360 358 N 0.02000
23.1
23.2
24 84 82 11-May-2010 360 358 N 0.02000
26 120 118 11-May-2013 360 358 N 0.02000
28 120 117 11-Apr-2013 360 357 N 0.02000
29 120 118 11-May-2013 360 358 N 0.02000
30 84 82 11-May-2010 360 358 N 0.02000
32 84 83 11-Jun-2010 360 359 N 0.02000
33 120 118 11-May-2013 360 358 N 0.02000
35 120 118 11-May-2013 360 358 N 0.02000
37 120 117 11-Apr-2013 360 357 N 0.02000
38 120 119 11-Jun-2013 300 299 N 0.02000
45 120 119 11-Jun-2013 360 359 N 0.02000
51 120 118 11-May-2013 360 358 N 0.02000
56 120 116 11-Mar-2013 360 356 N 0.02000
58 120 118 11-May-2013 360 358 N 0.02000
67 120 119 11-Jun-2013 300 299 N 0.02000
69 120 118 11-May-2013 336 336 N 0.02000
70 120 118 11-May-2013 360 358 N 0.02000
72 120 114 11-Jan-2013 360 360 N 0.02000
75 120 118 11-May-2013 360 358 N 0.02000
76 120 117 11-Apr-2013 300 297 N 0.02000
79 84 81 11-Apr-2010 360 357 N 0.02000
80 120 118 11-May-2013 360 358 N 0.02000
83 120 117 11-Apr-2013 300 297 N 0.02000
89 120 119 11-Jun-2013 360 359 N 0.02000
90 297 251 15-Jun-2024 297 251 N 0.02000
91 120 119 11-Jun-2013 360 359 N 0.02000
92 120 114 11-Jan-2013 360 354 N 0.02000
94 120 117 11-Apr-2013 360 357 N 0.02000
95 120 112 11-Nov-2012 360 352 N 0.02000
96 120 117 11-Apr-2013 360 357 N 0.02000
102 120 117 11-Apr-2013 240 237 N 0.02000
103 120 119 11-Jun-2013 360 359 N 0.02000
105 120 116 11-Mar-2013 240 236 N 0.02000
107 237 187 15-Feb-2019 291 241 N 0.02000
108 120 119 11-Jun-2013 360 359 N 0.02000
110 120 117 11-Apr-2013 360 357 N 0.02000
111 311 278 1-Sep-2026 360 327 N 0.02000
112 60 58 11-May-2008 360 358 N 0.02000
116 120 118 11-May-2013 240 238 N 0.02000
119 120 119 11-Jun-2013 360 359 N 0.02000
121 120 119 11-Jun-2013 300 299 N 0.02000
128 120 117 11-Apr-2013 300 297 N 0.02000
134 120 119 11-Jun-2013 360 359 N 0.02000
135 120 118 11-May-2013 360 358 N 0.02000
136 235 187 15-Feb-2019 235 187 N 0.02000
139 180 167 1-Jun-2017 360 347 N 0.02000
140 120 116 11-Mar-2013 240 236 N 0.02000
141 120 118 11-May-2013 360 358 N 0.02000
148 216 197 1-Dec-2019 360 341 N 0.02000
Mortgage Loan ARD Loans Anticipated
Number (Y/N) Repayment Date
- ---------------------------------------------
1 Y 11-Jun-2013
2 Y 11-May-2013
3 N
4 N
5 N
6 N
7 N
8 N
11 N
12 N
14 N
18 N
19 N
22 N
23 N
23.1
23.2
24 Y 11-May-2010
26 N
28 N
29 N
30 Y 11-May-2010
32 N
33 N
35 N
37 N
38 N
45 N
51 Y 11-May-2013
56 N
58 N
67 N
69 N
70 N
72 N
75 N
76 N
79 N
80 N
83 Y 11-Apr-2013
89 Y 11-Jun-2013
90 N
91 N
92 N
94 N
95 N
96 Y 11-Apr-2013
102 N
103 Y 11-Jun-2013
105 N
107 N
108 N
110 N
111 N
112 N
116 Y 11-May-2013
119 N
121 N
128 Y 11-Apr-2013
134 N
135 N
136 N
139 N
140 N
141 N
148 N
Additional Interest Environmental
Mortgage Loan Number Loan Group Number Property Name Rate Loan Originator Insurance
- --------------------------------------------------------------------------------------------------------------------------------
1 1 Lloyd Center Greater of : (i) the Wachovia N
Regular Interest Rate
plus 5% or (ii) the
Treasury Rate plus 5%
2 1 One South Broad Initial interest rate Wachovia N
Street +2%
3 1 673 First Avenue Wachovia N
4 2 Hamilton House Wachovia N
Apartments
5 1 Irongate Apartments Wachovia N
6 1 Columbiana Station Wachovia N
Shopping Center
7 1 16 West 61st Street Wachovia N
8 2 Arrowhead Highlands Wachovia N
Apartments
11 1 2175 K Street, N.W. Wachovia N
12 1 90 & 110 South Wachovia N
Bedford Road
14 1 Village on the Hill Wachovia N
18 1 College Grove Wachovia N
Shopping Center
19 1 Shoppes of Parkland Wachovia N
22 2 Archstone Southpoint Wachovia N
Apartments
23 1 WOW - Chippewa & Wachovia N
Hobart
23.1 WOW-Chippewa Falls Wachovia N
23.2 WOW-Hobart Wachovia N
24 1 Kearny Mesa Greater Initial Rate Wachovia N
Crossroads plus 3% or Treasury
plus 3%
26 2 Valley Stream Wachovia N
Village I Apartments
28 1 Gardens Towne Square Wachovia N
29 2 Forest Cove Wachovia N
Apartments
30 1 Rio Vista Building Greater Initial Rate Wachovia N
plus 3% or Treasury
plus 3%
32 2 Bermuda Villas Wachovia N
Apartments
33 1 8989 Rio Vista Plaza Wachovia N
35 1 Market Place Wachovia N
Shopping Center
37 1 Village Shoppes of Wachovia N
Flowery Branch
38 1 Hilton Norfolk Wachovia N
Airport
45 1 New Market Wachovia N
51 2 Calder Commons Greater of Note Rate Wachovia N
+ 3% or Treasury
Constant Maturity
Yield Index + 3%
56 1 Lincoln Road Plaza Wachovia N
58 1 River Chase Office Wachovia N
Center
67 1 Mini U Storage- Wachovia N
Fairfax Station
69 1 Bannockburn Mediplex Wachovia N
Office Building
70 1 York Farm Estates Wachovia N
72 1 2301 Glades Wachovia N
75 2 Valley Stream Wachovia N
Village II Apartments
76 1 Springfield Self Wachovia N
Storage
79 2 Miller Lake Wachovia N
Apartments
80 1 Walgreens - Elgin Wachovia N
83 1 Walgreens - Colorado Greater of Initial Wachovia N
Springs Rate plus
2.5% or
Treasury
Rate plus
2.5%,
subject to
an annual
increase of
.25%.
89 1 Walgreens - Greater of Initial Wachovia N
Tropicana Avenue Rate plus 2.5% or
Treasury Rate plus
2.5%, subject to an
annual increase of 0.25%
90 1 Rite Aid - Las Vegas Wachovia N
91 2 Schooner Landing Wachovia N
92 1 Palm Valley Wachovia N
Pavilions East
94 1 Rancho Palomino Wachovia N
Medical Center
95 1 Randhurst Crossings Wachovia N
Shopping Center
96 1 Walgreens - Omaha Greater of Initial Wachovia N
Rate plus 2.5% or
Treasury Rate plus
2.5%, subject to an
annual increase of
.25%.
102 2 Wilson Acres Wachovia N
Apartments
103 1 Walgreens - Dickinson Greater of Initial Wachovia N
Rate plus 2.0% or
Treasury Rate plus
2.0%, subject to an
annual increase of
0.25%
105 1 1230 48th Avenue Wachovia N
107 1 Rite Aid - Colonie Wachovia N
108 1 Shurgard - Brandon Wachovia N
110 2 Shockoe Place Wachovia N
111 2 Fairbrooke Senior Wachovia N
Housing Apartments
112 2 La Playa Apartments Wachovia N
116 1 Marshalls - Lodi Greater of Initial Wachovia N
Rate plus 2.5% or
Treasury Rate plus
2.5%, subject to an
annual increase of
.25%
119 1 Shurgard - Oldsmar Wachovia N
121 1 Mini U Storage-Maple Wachovia N
Shade
128 1 CVS - Shippensburg Greater of Initial Wachovia N
Rate plus 2.5% or
Treasury Rate plus
2.5%, subject to an
annual increase of
.25%
134 1 1407-1413 East Cary Wachovia N
Street
135 1 La Posada Apartments Wachovia N
136 1 Rite Aid - Baltimore Wachovia N
139 2 Laurel Pointe Wachovia N
Apartments
140 1 Meadowbrook Mobile Wachovia N
Home Park
141 2 Nob Hill Apartments Wachovia N
148 2 Timberlake Apartments Wachovia N
Cross
Collateralized
and Cross Annual Deposit
Defaulted Loan Interest Accrual to Replacement
Mortgage Loan Number Flag Defeasance Loan Secured by LC Method Lockbox Reserve
- -----------------------------------------------------------------------------------------------------------------------------------
1 Y Actual/360 Day 1 120,000
2 Y Actual/360 Springing 46,442
3 Y Actual/360 Springing 79,313
4 N Actual/360 60,800
5 Y Actual/360 36,960
6 N 30/360
7 Y Actual/360 Springing 22,416
8 Defeasance or YM Actual/360 67,200
11 Defeasance or YM Actual/360 Springing 12,216
12 Y Actual/360 57,549
14 Y Actual/360 Springing 52,808
18 Y Actual/360 18,137
19 Y Actual/360 14,565
22 Y Actual/360
23 Y Actual/360 Springing 37,650
23.1
23.2
24 Y Actual/360 Springing 19,013
26 Y Actual/360 60,750
28 Y Actual/360 22,960
29 N Actual/360 55,400
30 Y Actual/360 Springing 19,526
32 Y Actual/360 56,000
33 Y Actual/360 Springing 17,742
35 Y Actual/360 46,309
37 Y Actual/360 9,289
38 Y Actual/360 400,000
45 Y Actual/360 34,897
51 Y Actual/360 Springing 28,275
56 Y Actual/360 4,030
58 Y Actual/360 6,666
67 Y Actual/360
69 Y Actual/360 Springing 4,084
70 Y Actual/360 19,250
72 Y Actual/360
75 Y Actual/360 20,250
76 Y Actual/360
79 Y Actual/360 25,488
80 Y Actual/360
83 Y Actual/360 Springing
89 Y Actual/360 Springing 1,361
90 N 30/360 Day 1
91 Y Actual/360 33,630
92 Y Actual/360 3,519
94 Y Actual/360 8,132
95 Y Actual/360 2,237
96 Y Actual/360 Springing
102 Y Actual/360 36,500
103 Y Actual/360 Springing
105 Y Actual/360 22,063
107 Y 30/360 Day 1 2,795
108 Y Actual/360
110 Y Actual/360 11,500
111 N 30/360 21,360
112 LaFayette Y Actual/360 13,932
116 Y Actual/360 Springing 4,060
119 Y Actual/360
121 Y Actual/360
128 Y Actual/360 Springing 1,088
134 Y Actual/360 5,250
135 LaFayette Y Actual/360 6,447
136 N 30/360 Day 1 2,795
139 N Actual/360 19,992
140 Y Actual/360 19,855
141 Y Actual/360 6,000
148 N 30/360 12,800
Initial Deposit
to Capital
Improvements Initial TI/LC Ongoing TI/LC
Mortgage Loan Number Reserve Escrow Footnote
- ----------------------------------------------------------------------------
1 532,797 (1)
2 23,438 (1)
3 3,000,000 (1)
4 11,750
5
6
7
8
11 535,000 (1)
12 50,000
14 10,219
18 16,250 (1)
19 (1)
22 4,000
23 4,825 (1)
23.1
23.2
24 75,000 (1)
26 5,625
28 6,625
29 280,938
30 350,000 (1)
32 64,375
33 169,078
35 (1)
37
38
45 16,125 (1)
51
56
58 (1)
67 90,000
69
70
72 125,000 (1)
75
76
79 24,688
80
83
89 2,284
90
91 87,550
92 (1)
94 8,750 50,000 (1)
95 (1)
96
102 28,704
103
105 12,031 (1)
107
108
110 7,313
111
112 73,781
116 (1)
119
121
128
134 (1)
135 125,500
136
139
140 313
141
148
(1) In addition to any such escrows funded at loan closing for potential
TI/LC, these loans require funds to be escrowed during some or all of the
loan term for TI/LC expenses, which may be incurred during the loan term.
In certain instances, escrowed funds may be released to the borrower upon
satisfaction of certain leasing conditions.
(2) Refer to Annex A-6 in the Prospectus Supplement.