MORTGAGE LOAN PURCHASE AGREEMENT
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Mortgage Loan Purchase Agreement, dated as of November 1, 1995 (the
"Agreement"), between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. (the "Seller") and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase certain
multifamily and commercial mortgage loans (the "Mortgage Loans") as provided
herein. The Purchaser intends to deposit them, together with the First Union
Loans (as defined below), 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 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 November 1, 1995 (the "Cut-off Date"), among
the Purchaser as depositor, Bankers Trust Company as master servicer (in such
capacity, the "Master Servicer"), Bankers Trust Company as special servicer (in
such capacity, the "Special Servicer") and Union Bank as trustee (the
"Trustee"). Concurrently with the purchase of Mortgage Loans pursuant to this
Agreement, the Purchaser will also purchase multifamily and commercial mortgage
loans pursuant to a Mortgage Loan Purchase Agreement, dated as of November 1,
1995, between First Union National Bank of North Carolina ("First Union") and
the Purchaser (the "First Union Agreement"). Such mortgage loans (the "First
Union Mortgage Loans") will likewise be deposited into the Trust Fund.
Capitalized terms used but not defined herein have the respective meanings set
forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual agreements
set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
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(a) The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the schedule (the "Mortgage Loan Schedule") annexed
hereto as Exhibit A. The Mortgage Loan Schedule may be amended to reflect the
actual Mortgage Loans accepted by the Purchaser pursuant to the terms hereof.
(The Loans identified on the Mortgage Loan Schedule shall hereinafter be
referred to as the "MLMC Mortgage Loans.") The MLMC Mortgage Loans will have an
aggregate principal balance of $272,538,158 (the "MLMC Balance") as of the close
of business on the Cut-off Date, after giving effect to any payments due before
such date whether or not received. The MLMC Balance and
the First Union Balance (as defined in the First Union Agreement) together equal
an aggregate principal balance (the "Initial Pool Balance") of $643,601,863. The
purchase and sale of the MLMC Mortgage Loans shall take place on November 30,
1995 or such other date as shall be mutually acceptable to the parties hereto
(the "Closing Date"). The consideration for the MLMC Mortgage Loans shall
consist of (A) a cash amount equal to 102% of the aggregate principal of the
MLMC Mortgage Loans, plus (B) interest accrued on each MLMC Mortgage Loan at the
related Net Mortgage Rate, for the period from and including the Cut-off Date up
to but not including the Closing Date, which cash amount shall be paid to the
Seller or its designee by wire transfer in immediately available funds on the
Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the MLMC Mortgage Loans.
SECTION 2. Conveyance of Mortgage Loans.
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(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the MLMC
Mortgage Loans identified on the Mortgage Loan Schedule as of such date. The
Mortgage Loan Schedule, as it may be amended, shall conform to the requirements
set forth in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the MLMC Mortgage Loans due
on or before the Cut-off Date). All scheduled payments of principal and interest
due on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the MLMC Mortgage Loans due on or
before the Cut-off Date), shall belong to, and be promptly remitted to, the
Seller.
(c) The Seller hereby represents and warrants that it has, on behalf of the
Purchaser, delivered to the Trustee, the documents and instruments specified
below with respect to each MLMC 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, except as otherwise
disclosed on Exhibit B hereto, contain the following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of Union Bank,
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as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1995-C3;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (with
recording information indicated thereon), if such item is a document
separate from the Mortgage;
(iv) an original executed assignment of the Mortgage, any related
Assignment of Leases (if such item is a document separate from the
Mortgage), and any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of Union Bank, as trustee
for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1995-C3;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan, in favor of Union Bank, as trustee for the registered
holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1995-C3, in recordable form;
(vi) originals or copies of any written modification agreements in
those instances where the terms or provision of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's
title insurance issued on the date of the origination of such Mortgage
Loan, or, if such policy has not been issued, an irrevocable, binding
commitment to issue such title insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in favor of
the originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is an
effective UCC Financing Statement in favor of the Seller on record with the
applicable public office for UCC Financing
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Statements, an original UCC-2 or UCC-3, as appropriate, in favor of Union
Bank, as trustee for the registered holders of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1995-C3.
(d) Within 30 days following the Closing Date, the Purchaser shall submit
or cause to be submitted for recordation or filing, as the case may be, in the
appropriate public office for real property records or Uniform Commercial Code
financing statements, as appropriate, each assignment of Mortgage and each
assignment of Assignment of Leases referred to in clauses (iv) and (v) of
subsection (c) above and each UCC-2 and UCC-3 in favor of and delivered to the
Trustee constituting part of the Mortgage File. If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the
Purchaser or its designee.
(e) All documents necessary to the servicing of the MLMC Mortgage Loans and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall be delivered or caused to be
delivered by the Seller to the Master Servicer.
SECTION 3. Representations, Warranties and Covenants of Seller.
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(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a banking corporation validly existing and in good
standing under the laws of the State of North Carolina and is duly
authorized and qualified to transact any and all business contemplated by
this Agreement 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, moratorium and other laws affecting the
enforcement of creditors' rights in general and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), or by public policy considerations
underlying the securities laws,
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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 certificate of incorporation or By-Laws,
(B) violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or which may be applicable to the
Seller or any of its assets.
(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 certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement.
(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 and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of 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
adversely affect the performance by the Seller of its obligations under
this Agreement.
(viii) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the
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Seller will report the transfer of the MLMC Mortgage Loans of the Seller to
the Purchaser as a sale of the MLMC Mortgage Loans to the Purchaser in
exchange for consideration consisting of an amount equal to the Seller's
pro rata portion of the proceeds of the sale of the Certificates by the
Purchaser to the Underwriters (the Seller's pro rata portion to be
determined according to the percentage that the MLMC Balance represents of
the Initial Pool Balance) pursuant to the Underwriting Agreement, dated as
of November 28, 1995 (the "Underwriting Agreement") and the Certificate
Purchase Agreement, dated as of November 28, 1995 (the "Certificate
Purchase Agreement"). The consideration received by the Seller upon the
sale of the MLMC Mortgage Loans to the Purchaser will constitute reasonably
equivalent value and fair consideration for the MLMC Mortgage Loans. The
Seller will be solvent at all relevant times prior to, and will not be
rendered insolvent by, the sale of the MLMC Mortgage Loans to the
Purchaser. The Seller is not selling the MLMC Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller.
(ix) Immediately prior to the sale of the MLMC Mortgage Loans to the
Purchaser as herein contemplated, the Seller will have good title thereto
and be the sole owner thereof, and such sale will transfer the MLMC
Mortgage Loans to the Purchaser free and clear of any pledge, lien,
encumbrance or security interest.
(b) The Seller hereby represents and warrants for the benefit of the
Purchaser and the Trustee as of the Closing Date, with respect to each MLMC
Mortgage Loan, that:
(i) The Seller has good and marketable title to, and is the sole owner
and holder of, the Mortgage Loan.
(ii) The Seller has full right and authority to sell, assign and
transfer the Mortgage Loan.
(iii) The information pertaining to the Mortgage Loan set forth in the
Mortgage Loan Schedule is true and correct in all material respects as of
the Cut-off Date.
(iv) The Mortgagor, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of the
origination date.
(v) The origination, servicing and collection practices used by the
Seller or any prior holder of the Note have been in all respects legal,
proper and prudent and have met customary industry standards.
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(vi) The Seller is transferring the Mortgage Loan to the Purchaser
free and clear of any liens, pledges, charges and security interests.
(vii) The proceeds of the Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
(viii) The Mortgage Loan complied with all applicable usury,
truth-in-lending, real estate settlement, equal credit opportunity and
disclosure laws as of the origination date.
(ix) Each of the related Mortgage Note, related Mortgage and other
agreements executed in connection therewith is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally, and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law), and there is no valid defense, counterclaim or right of
offset or rescission available to the related Mortgagor with respect to
such Mortgage Note, Mortgage or other agreements.
(x) The Mortgage File contains an Assignment of Leases, which creates,
in favor of the holder, a valid perfected and enforceable lien of the same
priority as the related Mortgage, in the property and rights described;
provided that the enforceability of such lien is subject to applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws
affecting the enforcement of creditors' rights generally, and by the
application of the rules of equity.
(xi) Since the origination of the Mortgage Loan the terms of the
related Mortgage Note, Mortgage and Security Agreements have not been
impaired, waived, modified, altered, satisfied, canceled or subordinated by
the Seller, the originator or the servicer thereof in any respect, except,
in each of the foregoing instances, by written instruments that are a part
of the related Mortgage File, recorded in the applicable public recording
office if necessary to maintain the priority of the lien of the related
Mortgage and Security Agreements, delivered to the Purchaser.
(xii) The Mortgage Loan complies with the Seller's underwriting
policies in effect as of such Mortgage Loan's origination date (as
applicable).
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(xiii) The Note is not secured by any collateral that is not in the
Trust Fund and each Mortgage Loan that is cross-collateralized is
cross-collateralized only with other mortgage loans sold pursuant to this
Agreement.
(xiv) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such Mortgage.
(xv) The Mortgage Loan is not a participation interest in a mortgage
loan, but is a whole loan, and the Seller does not own and is not entitled
to own any equity interest in the Mortgagor.
(xvi) The Mortgage Loan does not contain any terms providing for a
contingent interest.
(xvii) The related Mortgage is a valid and enforceable first-mortgage
lien on the related Mortgaged Property. Such lien has priority over all
other liens or encumbrances (including mechanic's or materialmen's liens)
except for (A) the lien for current real estate taxes and assessments not
yet due and payable and (B) covenants, conditions and restrictions, rights
of way, easements and other matters that are of public record and/or are
referred to in the related lender's title insurance policy, none of which
materially interferes with the security intended to be provided by such
Mortgage.
(xviii) The Note and Mortgage do not require the Mortgagee thereof to
release any portion of the Mortgaged Property from the lien of the Mortgage
except upon payment in full of the Mortgage Loan.
(xix) Prior to the Cut-off Date, any delinquent taxes that had become
due and owing in respect of, and affecting, the related Mortgaged Property
were paid, or an escrow of funds in an amount sufficient to cover such
payments has been established.
(xx) All escrow deposits and payments relating to the Mortgage Loan
are under the control of the Seller or Servicer of such Mortgage Loan and
all amounts required to be deposited by the Mortgagor have been deposited.
(xxi) (A) Except for certain delinquent payment, none of which was
more than thirty (30) days past the date when first due, there was no
material default, breach, violation or event of acceleration existing under
the related Mortgage or the related Mortgage Note, and to the Best
Knowledge of Seller, no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default, breach,
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violation or event of acceleration occurred during the preceding twelve
months; and (B) the Seller has not waived any material default, breach,
violation or event of acceleration of any of the foregoing, and, pursuant
to the terms of the related Mortgage or the related Mortgage Notice, 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.
(xxii) As of the date of origination, the Mortgage Loan has a debt
service coverage ratio of at least 1.15 and a loan-to-value ratio of not
more than 85.00%, as calculated as described in the Prospectus Supplement.
(xxiii) There is no proceeding known to the Seller to be pending for
the total or partial condemnation of the related Mortgaged Property, and
the Mortgaged Property is free and clear of any damage that would
materially and adversely affect its value as security for the Mortgage
Loan.
(xxiv) Each improvement located on or forming part of the related
Mortgaged Property complies with applicable laws and zoning ordinances, or
constitutes a legal non-conforming use or structure or, if such an
improvement does not so comply, such non-compliance does not materially and
adversely affect the value of the Mortgaged Property.
(xxv) None of the improvements included for the purpose of determining
the appraised value of the Mortgage Property at the time of the origination
of the Mortgage Loan lies outside of the boundaries and building
restriction lines of the Mortgaged Property and no improvements on
adjoining properties materially encroach upon the Mortgage Property.
(xxvi) The related Mortgaged Property is covered by a lender's title
insurance policy insuring that the related Mortgage is a valid first
mortgage lien on such Mortgaged Property, subject only to the exceptions
stated therein, which do not and will not materially and adversely
interfere with (1) the ability of the Mortgagor timely to pay in full the
principal and interest on the Mortgage Note, (2) the use of the Mortgaged
Property for the use currently being made thereof, or (3) the value of the
Mortgaged Property; and such title insurance policy is in full force and
effect, and no claims have been made thereunder.
(xxvii) The related Mortgaged Property is insured by a fire and
extended perils insurance policy that provides coverage in an amount not
less than the full replacement value thereof.
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(xxviii) The Mortgaged Property is insured by business interruption or
rent insurance, in an amount at least equal to 12 months of operations of
the Mortgaged Property and comprehensive general liability insurance in an
amount not less than $1 million per occurrence.
(xxix) The Mortgaged Property is not located in a "flood hazard area"
as defined by the Federal Insurance Administration or is covered by flood
hazard insurance.
(xxx) The Mortgage Loan represents a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. The Seller represents and
warrants that, either as of the date of origination or the Closing Date,
the fair market value of the property securing the Mortgage Loan was not
less than 80% of the "adjusted issue price" (within the meaning of the
REMIC Provisions) of such Mortgage Loan.
(xxxi) Prepayment Premiums and Yield Maintenance Charges payable with
respect to the Mortgage Loan, if any, constitute "customary prepayment
penalties" within the meaning of Treasury regulation Section
1.860G-1(b)(2).
(xxxii) A Phase I Environmental Assessment was performed by or on
behalf of the Seller with respect to the related Mortgaged Property. Such
Phase I Environmental Assessment was performed within six (6) months (or 12
months with respect to nine (9) of the Mortgaged Properties) prior to their
respective dates of origination. A report of such Phase I Environmental
Assessment has been delivered to the Purchaser, and the Seller, having made
no independent inquiry other than reviewing such report, has no knowledge
of any material and adverse environmental condition or circumstance
affecting the related Mortgaged Property that was not disclosed in such
report.
(xxxiii) The Mortgage Loan contains a representation made by the
Mortgagor in substance that it has not and will not use, cause or permit to
exist on the related mortgaged property any hazardous materials in any
manner that violates federal, state or local laws, ordinances, regulations
or orders. The mortgagor will defend and hold the purchaser and its
successors and/or assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, expenses, and claims of
any kind whatsoever (including attorney's fees and costs) paid, incurred,
or suffered by, or asserted against, any such party resulting from a breach
of any representation, warranty or covenant given by the mortgagor under
the mortgage. To the best of the seller's knowledge, the mortgaged property
is in material compliance with all applicable federal, state and local laws
pertaining to environmental hazards, and no notice of violation of such
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laws have been issued by any governmental agency or authority.
(xxxiv) To the best of the knowledge of the Seller, the Mortgagor is
not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xxxv) No advance of funds has been made directly or indirectly, by
the Seller to the Mortgagor and no funds have been received from any person
other than the Mortgagor for or on account of payments due on the Note.
(xxxvi) The related Mortgage prohibits any further pledge or lien on
the Mortgaged Property, whether equal or subordinate to the lien of the
Mortgage, without the prior written consent of the holder.
(xxxvii) If the related Mortgage Property is a retail or multifamily
property, based on Mortgagor representations, tenant estoppel certificates
and other documents obtained by the Seller, (i) the information contained
in the related schedule of leases or most recent rent roll, as the case may
be, is true and correct in all material respects, (ii) all leases set forth
therein are in full force and effect, and (iii) no default by the Mortgagor
or the lessees has occurred under such leases, nor, to the best of the
Seller's knowledge, is there any existing condition which, but for the
passage of time or the giving of notice, or both, would result in a default
under the terms of such lease.
(xxxviii) Any related assignment of leases creates a valid
first-priority assignment of or security interest in the right to receive
all payments due under the related lease, and no other person owns any
interest therein superior to or of equal priority with the interest created
under such assignment.
(xxxix) If the principal balance of the related Mortgage Loan is
greater than $2.5 million, the mortgagor is a person, other than an
individual, which is formed or organized solely for the purpose of owning
and operating the Mortgaged Property, does not engage in any business
unrelated to such property and its financing, does not have any assets
other than those related to its interest in the property or its financing,
or any indebtedness other than as permitted by the related Mortgage and the
other Mortgage Loan documents, has its own books and records and accounts
separate and apart from any other person, and holds itself out as being a
legal entity, separate and apart from any other person.
(xl) With respect to any Mortgage Loan that is secured in whole or in
part by the interest of a Mortgagor
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as a lessee under a Ground Lease but not by the related Fee Interest:
(A) Such Ground Lease or a memorandum thereof has been or will be
duly recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage;
(B) The Mortgagor's interest in such Ground Lease is assignable
to the Trustee without the consent of the lessor thereunder (or, if
any such consent is required, it has been obtained prior to the
Closing Date) and, in the event that it is so assigned, is further
assignable by the Trustee and its successors without a need to obtain
the consent of such lessor;
(C) Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the Ground Lessee and
that any such action without such consent is not binding on the Ground
Lessee, its successors or assigns.
(D) Unless otherwise disclosed to the Purchaser, the Ground Lease
does not permit any increase in the amount of rent payable by the
Ground Lessee thereunder during the term of the Mortgage Loan.
(E) To the best of the Seller's knowledge, at the Closing Date,
such Ground Lease is in full force and effect and no default has
occurred under such Ground Lease;
(F) Such Ground Lease requires the lessor thereunder to give
notice of any default by the lessee to the mortgagee; and such Ground
Lease, or an estoppel or consent letter received by the mortgagee from
the lessor, further provides that no notice of termination given under
such Ground Lease is effective against the mortgagee unless a copy has
been delivered to the mortgagee in the manner described in such Ground
Lease or estoppel or consent letter;
(G) Except as indicated in the related title insurance policy or
opinion of title, the ground lessee's interest in the Ground Lease is
not subject to any liens or encumbrances superior to, or of equal
priority with, the related mortgage, other than the related ground
lessor's related fee interest.
(H) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease before the lessor thereunder may terminate such Ground
Lease; and
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(I) Such Ground Lease has an original term (including any
extension options set forth therein) that extends not less than 10
years beyond the Maturity Date of the related Mortgage Loan.
(J) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds other than in
respect to a total or substantially total loss or taking, will be
applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the lessee's mortgagee or a trustee
appointed by it having the right to hold and disburse such proceeds as
the repair or restoration progresses, or to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon; and
(K) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by a
prudent commercial mortgage lender; and such Ground Lease contains a
covenant that the lessor thereunder is not permitted, in the absence
of an uncured default, to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee; or in any manner, which
would adversely affect the security provided by the related Mortgage.
(d) If the Seller receives from the Master Servicer notice of a Document
Defect or a Breach (the "Defect/Breach Notice"), then the Seller shall within 90
days after its receipt of the Defect/Breach Notice (i) cure such Document Defect
or Breach, as the case may be, in all material respects, or (ii) repurchase the
affected MLMC Mortgage Loan (or the related mortgaged property) from the Trustee
at a price equal to the Purchase Price; provided, however, that if such Document
Defect or Breach is capable of being cured but not within such 90-day period and
the Seller has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, the Seller shall have an
additional 90 days to complete such cure; and provided, further, that with
respect to such additional 90-day period the Seller shall have delivered an
Officer's Certificate to the Trustee setting forth the reason such Document
Defect or Breach is not capable of being cured within the initial 90-day period
and what actions the Seller is pursuing in connection with the cure thereof and
stating that the Seller anticipates that such breach will be cured within the
additional 90-day period. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect with respect to any Mortgage File 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.
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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 Delaware. The Purchaser
has the full corporate power and authority and legal right to acquire the
MLMC Mortgage Loans from the Seller and to transfer the MLMC 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 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 MLMC Mortgage Loans by the
Purchaser, the transfer of the MLMC Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement and by the Purchaser,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of
the Purchaser's Articles of Incorporation or Bylaws, (B) any term or
provision of any material agreement, contract, instrument or indenture, to
which the Purchaser is a party or by which the Purchaser is bound, or (C)
any law, rule, regulation, order, judgment, writ, injunction or decree of
any court or governmental authority having jurisdiction over the Purchaser
or its assets.
(e) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Purchaser will report the transfer of the
MLMC Mortgage Loans by the Seller to the Purchaser as a sale of the MLMC
Mortgage Loans to the Purchaser in exchange for consideration consisting of
an amount equal to the Seller's pro rata portion of the proceeds of the
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sale of the Certificates by the Purchaser to the Underwriters (the
Seller's pro rata portion to be determined according to the percentage that
the MLMC Balance represents of the Initial Pool Balance) pursuant to the
Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, One
Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M.,
New York time, 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 Sections 3(a), 3(b) and 3(c) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to
the Purchaser, 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 Custodian 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
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; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement.
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
MLMC 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;
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(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: (1) 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 date hereof;
(c) An Officer's Certificate from an officer of the Seller, in his or her
individual capacity, 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, in his or her
individual capacity, dated the Closing Date, and upon which the Purchaser and
the Underwriters may rely, to the effect that (i) such officer has carefully
examined the Prospectus (as defined in the Underwriting Agreement) and nothing
has come to his attention that would lead him to believe that the Prospectus, as
of the date of the Prospectus Supplement (as defined in the Underwriting
Agreement) or as of the Closing Date, included or includes any untrue statement
of a material fact or omitted or omits to state therein a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (ii) such officer has examined
the Memorandum (as defined in the Certificate Purchase Agreement) and nothing
has come to his attention that would lead him to believe that the Memorandum, as
of the date thereof or as of the Closing Date, included or includes any untrue
statement of a material fact or omitted or omits to state therein a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The resolutions of the board of directors of the Seller and any
requisite shareholder consent authorizing the Seller's entering into the
transactions contemplated by this Agreement, the certificate of incorporation
and by-laws of the Seller, and a certificate of good standing of the Seller
issued by the Secretary of State of the State of Delaware not earlier than sixty
(60) days prior to the Closing Date;
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(f) A written opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Seller,
in form and substance acceptable to the Purchaser and its counsel, with any
modifications required by the rating agencies identified in the Prospectus
Supplement (the "Rating Agencies"), dated the Closing Date and addressed to the
Purchaser, 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 agrees to indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if any,
who controls the Purchaser or the Underwriters within the meaning of either
Section 15 of the Securities Act of 1933 (the "1933 Act") or Section 20 of the
Securities Exchange Act of 1934 (the "1934 Act"), against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based in whole or in part upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, in any amendment
thereof or supplement thereto, the Private Placement Memorandum, Computation
Materials or ABS Term Sheets distributed by either Underwriter, or arise out of
or are based upon any 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 in which they were made, not misleading, which
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon any information furnished to the Purchaser by the Seller
or approved by the Seller, or upon any document delivered to the Purchaser by
the Seller, or upon any of the representations, warranties, covenants or
agreements of the Seller as set forth in this Agreement (collectively, the
"Seller's Information"), it being acknowledged that the statements set forth in
the Prospectus Supplement under the caption "Description of the Mortgage Pool"
or elsewhere in the Prospectus Supplement with respect to the subjects discussed
under such caption and statements in the Private Placement Memorandum, the
Computational Materials and ABS Term Sheet, to the extent relating to or based
(in whole or in part) on information relating to the MLMC Mortgage Loans or the
Seller, are to be the only statements made in reliance upon information
furnished or approved by the Seller, or upon documents delivered to the
Purchaser by the Seller, or upon any of the representations, warranties,
covenants or agreements of the Seller as set forth in this Agreement. The Seller
further agrees to indemnify and hold harmless the Purchaser, the Underwriters,
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their respective officers and directors, and each person, if any, who controls
the Purchaser or the Underwriters within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, to the same extent as the foregoing
indemnity with reference to the inclusion of information substantially identical
to that included in the Prospectus Supplement with respect to the Seller's
Information in the Memorandum or any amendment thereof or supplement thereto.
This indemnity agreement will be in addition to any liability which the Seller
may otherwise have.
(b) 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 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
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 or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its 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, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel 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
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shall only be in respect of the counsel referred to in such clause (i) or (iii).
(c) 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.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(c) 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(c) 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 ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8
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.
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(f) 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 MLMC Balance represents the
Initial Pool Balance): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus and Memorandum
relating to the Certificates; (ii) the initial fees, costs, and expenses of the
Trustee (including reasonable attorneys' fees); (iii) the filing fee charged by
the Securities and Exchange Commission for registration of the Certificates so
registered; (iv) the fees charged by the Rating Agencies to rate the
Certificates so rated; (v) the expense of recording any assignment of Mortgage
or assignment of Assignment of Leases as contemplated by Section 2 hereof; and
(vi) the cost of obtaining a "comfort letter" from a firm of certified public
accountants selected by the Purchaser with respect to numerical information in
respect of the MLMC Mortgage Loans and the Seller included in the Prospectus and
Memorandum. 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 MLMC Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the MLMC Mortgage Loans by the Seller to the Purchaser and not as a pledge of
the MLMC 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 MLMC 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 MLMC 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 Articles 8 and 9 of the
New York Uniform Commercial Code; (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
MLMC Mortgage Loans, and all amounts payable to the holder of the MLMC 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
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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 9-305 of the New York Uniform Commercial Code; and
(v) notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from persons 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 MLMC Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands and
other communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
incorporated herein by reference or contained in the certificates of officers of
the Seller submitted pursuant hereto, shall remain operative and in full force
and effect and shall survive delivery of the MLMC Mortgage Loans by the Seller
to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
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invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
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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
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By:_______________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
PURCHASER
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
INVESTORS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address for Notices:
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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EXHIBIT A
MORTGAGE LOAN SCHEDULE
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
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32 Americana Gardens ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,050,000.00
▇ ▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 15,640,000.00
19 Berkshire Hilton Inn ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,080,030.30
55 Chestnut Cove Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,024,000.00
28 ▇▇▇▇▇▇▇ Aire MH Park ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,000,000.00
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34 Cross Creek Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,780,000.00
46 Cupertino Shopping Center ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000.00
22 Days Inn-Clairmont ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,200,000.00
13 Dove Tree Apartments ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,549,032.00
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,994,434.61
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▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,396,599.24
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,200,000.00
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,690,432.27
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Towers ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,672,732.78
16 Lark Haven Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,515,961.58
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10 Lions Head Apartments ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,300,000.00
18 Manchester Oaks Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,105,000.00
59 Memphis EconoLodge Airport ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,705,500.83
65 Multiflex I & II 2450 & ▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,340,000.00
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,000,000.00
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26 One Hamden Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,986,201.92
67 Paradise View Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,121,439.03
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,094,950.83
6 Peartree/Plumtree Apartments ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 14,000,000.00
▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ - ▇▇ Maxx ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 24,000,000.00
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▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ - Home Base ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,250,000.00
69 Ramada Inn Montgomery ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 990,000.00
40 Ramada Inn Nashville ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,800,000.00
33 Ramada Inn-Six Flags ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,050,000.00
31 Rivercrest II Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,250,000.00
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▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,120,000.00
▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,120,000.00
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Apartments ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,650,000.00
27 Shaminy Brook Apartments ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,800,000.00
64 Silvercreek Apartments ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,381,059.98
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▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,152,000.00
15 Tanager ▇▇▇▇▇▇▇ Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,890,262.46
▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇. ▇. - ▇▇▇▇▇ ▇▇ 27981-28051 ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 13,964,430.61
25 The ▇▇▇▇ Club Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,040,000.00
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇/▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 9,000,000.00
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▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,344,089.91
36 Township Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇) ▇▇ ▇▇▇▇▇ 3,300,000.00
35 Treehouse Apartments ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,780,000.00
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,250,000.00
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000.00
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42 Westgate Shopping Center ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,400,000.00
52 Westinghouse ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,150,000.00
37 Westwood Center ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,200,000.00
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 11,610,000.00
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-24-
CONTROL MONTHLY REMAINING REMAINING MATURITY GROUND SERVICING MORTGAGE LOAN
NUMBER PAYMENT RATE TERM AMORT DATE LEASE FEES STRIP SELLER
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32 34,320.88 9.120 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
3 115,634.21 8.080 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
19 63,724.53 11.250 49 241 12/1/99 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
55 15,419.59 8.400 84 360 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
28 37,668.83 8.280 120 360 12/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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34 27,683.62 7.980 84 360 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
46 17,913.72 8.640 180 360 12/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
22 48,233.37 9.430 240 240 11/1/15 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
13 65,311.91 8.410 117 357 8/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
12 68,565.39 8.400 83 359 10/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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63 10,804.50 8.540 176 356 7/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
17 53,636.32 8.160 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
60 15,935.15 9.580 80 236 7/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
8 88,735.22 8.370 83 359 10/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
16 57,419.58 8.410 117 357 8/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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10 68,045.71 7.970 180 360 11/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
18 45,393.58 8.140 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
59 16,547.21 10.040 238 238 9/1/15 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
65 10,844.28 8.560 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
20 46,986.69 8.170 84 300 12/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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26 47,163.02 9.670 82 238 9/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
67 8,697.84 8.020 57 297 8/1/00 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
53 16,281.32 8.590 176 356 7/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
6 104,096.66 8.140 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
2 194,550.09 8.580 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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21 66,876.59 8.580 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
69 9,022.22 9.180 84 240 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
40 25,935.33 9.410 240 240 11/1/15 Yes 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
33 37,566.38 9.430 240 240 11/1/15 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
31 31,392.64 8.070 180 360 11/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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24 38,572.89 8.280 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
38 23,505.35 8.280 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
61 12,998.40 8.240 180 300 12/1/10 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
27 36,568.21 8.400 84 360 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
64 12,080.34 8.520 236 236 7/1/15 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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23 39,249.88 8.400 84 360 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
15 60,279.12 8.410 117 357 8/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
5 105,867.07 8.320 116 356 7/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
25 37,263.20 8.080 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
11 65,037.74 7.840 120 360 12/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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45 17,853.40 8.370 116 356 7/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
36 26,151.30 8.310 120 300 12/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
35 28,610.75 8.330 120 360 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
49 18,193.49 8.550 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
47 17,950.30 8.130 84 300 11/1/02 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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42 19,649.98 8.700 120 300 12/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
52 17,254.47 8.460 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
37 27,470.49 9.280 120 300 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
9 90,961.46 8.310 120 312 11/1/05 No 0.125 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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-25-
