EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of June 15, 2005 between CITIGROUP GLOBAL MARKETS REALTY CORP. (the "Seller")
and CITIGROUP 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 June 1,
2005, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (the "Master Servicer"), Allied Capital Corporation, as special
servicer (the "Special Servicer"), LaSalle Bank National Association, as trustee
(the "Trustee"), and ABN AMRO Bank N.V., as fiscal agent. Capitalized terms used
herein (including the schedules attached hereto) but not defined herein (or in
such schedules) 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 $1,104,182,164.52 (the "CGMRC 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 CGMRC 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
$1,450,972,921 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on June 28, 2005 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 consist of an amount equal to (i) 101.9384% of the CGMRC Mortgage
Loan Balance as of the Cut-off Date, plus (ii) $4,224,600.96, which amount
represents the amount of interest accrued on the CGMRC Mortgage Loan Balance at,
in the case of the portion thereof attributable to each Mortgage Loan,
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 by the
Seller of the Aggregate Purchase Price and satisfaction or waiver of the other
conditions to closing that are for the benefit of the Seller (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Aggregate Purchase Price), the Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing released basis, together with all of the Seller's right, title
and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
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 (with a copy to the Master Servicer and the
Special Servicer within ten Business Days of the Closing Date), 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 for the benefit of the Seller 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 LaSalle Bank National Association, as trustee for
the registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 or in blank
(or a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable
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recording office) with evidence of recording indicated thereon or certified
by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with 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 and, if delivered in blank, the name
of the assignee), of (A) the Mortgage, (B) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (C) any other
recorded document relating to the Mortgage Loan otherwise included in the
Mortgage File, in favor of LaSalle Bank National Association, as trustee
for the registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and, in the
case of an A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of LaSalle Bank National Association, as trustee for
the registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and, in the
case of an A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), 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
pro forma policy or 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 reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the 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 when it was to
deliver the subject Mortgage File on or 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 Financing Statement assignment, in
form suitable for filing
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in favor of LaSalle Bank National Association, as trustee for the
registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3 (and, in the
case of any A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), as assignee, or in blank;
(ix) an original or a copy of (A) any Ground Lease and (B) any
loan guaranty, indemnity, ground lessor estoppel or environmental insurance
policy or lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor (including, in the case of an A-Note
Mortgage Loan, any related A/B Intercreditor Agreement) and any
intercreditor agreement relating to mezzanine debt related to the
Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to the Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents relating to the Mortgage Loan (with the originals thereof to be
delivered to the Master Servicer);
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and any applicable transfer or
assignment documents; and
(xiv) with respect to each B-Note Loan, all of the above
documents with respect to such B-Note Loan and the related A/B
Intercreditor Agreement; provided that a copy of the Mortgage Note relating
to each B-Note Loan, rather than the original, shall be provided, and no
endorsements to such note shall be provided.
(d) The Seller shall take all actions reasonably necessary to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement, including bearing the out-of-pocket costs and
expenses of the Trustee in connection with the performance by the Trustee of its
recording, filing and delivery obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, attorney-client
privileged communications and internal correspondence, credit underwriting or
due diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations and other underwriting analysis of the Seller) relating to, and
necessary for the servicing and administration of, each Mortgage Loan and in the
Seller's possession 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
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which secure any Mortgage Loan. 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.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of New York 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 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 certificate of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, 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;
(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;
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(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 (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 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, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser and
the Trustee (for the benefit of the Certificateholders), which representations
and warranties are subject to the exceptions set forth on Schedule III.
(c) 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 (or,
if applicable, such shorter period contemplated by Section 3(g)) 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 (or, if applicable,
such shorter period contemplated by Section 3(g)) 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
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value of the applicable Mortgage Loan, the interests 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
losses and any Additional Trust Fund Expenses directly resulting therefrom 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 (or, if applicable, such shorter period contemplated by
Section 3(g)), (i) repurchase the affected Mortgage Loan at the applicable
Purchase Price not later than the end of such 90-day period (or, if applicable,
such shorter period contemplated by Section 3(g)), or (ii) substitute a
Qualified Substitute Mortgage Loan (other than with respect to the Carolina
Place Mortgage Loan, for which no substitution shall be permitted) 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, if a Document Defect
(other than a Document Defect specifically addressed in Section 3(g)) 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, then unless such Document Defect or Breach
would cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute for 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 or any letter of credit) shall be considered to materially and adversely
affect the value of the applicable 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 Mortgagor or third party with
respect to the related Mortgage Loan, establishing the validity or priority of
any lien on any collateral securing the related Mortgage Loan or for any
immediate significant servicing obligations. 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 an uncured Document Defect, the Seller shall provide
the officer's certificate to the Trustee described above as to the reasons such
Document Defect 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 paragraph 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 with respect to any Mortgage Loan 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.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution shall
be part of the Trust Fund. Periodic Payments due with respect
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to any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund and shall be remitted to the
Seller promptly following receipt.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is 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 each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for 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 or
repurchase, as applicable, of Mortgage Loans set forth herein or in the Pooling
and Servicing Agreement. 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 Document
Defect or Breach 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 purchase
or substitute for a Crossed Loan hereunder in the manner prescribed above while
the Purchaser 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 Purchaser, the Primary Collateral securing the Crossed Loans
still held by the Purchaser, so long as such exercise does not materially impair
the ability of the other party to exercise its remedies against its Primary
Collateral.
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 such 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.
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(e) 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.
(f) 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 this Section 3.
(g) Notwithstanding any other provision of this Agreement to the
contrary, if any Specially Designated Mortgage Loan Document is identified on
the schedule of exceptions delivered by the Trustee on the Closing Date pursuant
to the Pooling and Servicing Agreement, the Seller shall cure any material
exception identified therein within 15 Business Days (or, in the reasonable
discretion of the Controlling Class Representative, 30 Business Days) following
the Closing Date (for the avoidance of doubt, any deficiencies with respect to a
Mortgage resulting solely from a delay in the return of the related documents
from the applicable recording office, shall not be subject to the provision of
this Section 3(g)). If such Document Defect is not so cured, the Seller shall:
(1) repurchase the related Mortgage Loan, (2) with respect to exceptions
relating to item identified in Section 2(c)(xii), deposit with the Special
Servicer 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 (or, in the alternative, the Seller may deliver to the Trustee,
with a certified copy to the Master Servicer, a replacement 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 or the Special Servicer, as the case may be, on behalf of the Trust,
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
the items identified in Sections 2(c)(i), 2(c)(ii) and 2(c)(vii), deposit with
the Special Servicer 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) above shall be held by the
appropriate servicer 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, at
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which time such funds or letter of credit, as applicable, shall be returned to
the Seller and (y) 30 Business Days or, if the Controlling Class Representative
has extended the cure period, 45 Business Days after the Closing Date; provided,
however, that if such exception is not cured within such 30-Business Day or
45-Business Day period, as the case may be, (A) in the case of clause (2) above
the Special Servicer shall retain the funds (on deposit in the Special Reserve
Account) 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 shall be returned to the Seller.
The Seller may direct the Special Servicer to invest or cause the
investment of the funds deposited in a Special Reserve Account in Permitted
Investments that bear interest or are sold at a discount and that mature, unless
payable on demand, no later than the Business Day prior to the next P&I Advance
Date, provided, that in the absence of appropriate and timely written
instructions from the Seller, the Special Servicer shall not have any obligation
to invest, or direct the investment of, funds in a Special Reserve Account. All
income and gain realized from the investment of funds deposited in a Special
Reserve Account shall be for the benefit of the Seller. The Seller shall remit
to the Trustee from its own funds for deposit into any Special Reserve Account
the amount of any Net Investment Loss (net of Net Investment Earnings) in
respect of such Permitted Investments immediately upon realization of such Net
Investment Losses and receipt of written notice thereof from the Trustee,
provided, that the Seller shall not be required to deposit any loss on an
investment of funds in the Special Reserve Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Special Reserve Account
so long as such depository institution is not the same entity as the Seller or
an affiliate thereof. Any Special Reserve Account shall be beneficially owned by
the Seller, who shall be taxable on all income, if any, with respect thereto.
(h) Notwithstanding any other provision of this Agreement to the
contrary, 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) that is a subject of matters
described in representations 23 and 43 set forth in Schedule I to this
Agreement, 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 or 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. To the extent that the required payment
referred to in the second preceding sentence 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.
10
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 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 (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) 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 (i) any term or provision of the
Purchaser's articles of association or bylaws, (ii) 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 (iii) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets, which default
might have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(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 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
11
other governmental agency or instrumentality which would, in the Purchaser's
reasonable and good faith judgment, 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 Sidley Xxxxxx Xxxxx & Xxxx LLP, New
York, New York 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 Section 3(a) and Section 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, the Initial
Purchasers 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 and the Purchaser shall each 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) Letters from the independent accounting firm of Ernst & Young LLP
in form satisfactory to the Purchaser, relating to certain
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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, the
Underwriters and the Initial Purchasers may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement 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, the Underwriters and the Initial Purchasers may rely, to the effect
that (i) such officer has carefully examined the Specified Portions (as defined
below) of the Prospectus Supplement and nothing has come to his attention that
would lead him to believe that the Specified Portions of the Prospectus
Supplement, as of the date of the Prospectus Supplement or as of the Closing
Date, included or include any untrue statement of a material fact relating to
the Mortgage Loans or the Seller or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans or the Seller, 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 or the Seller, in the light of the circumstances under which they were
made, not misleading. The "Specified Portions" of the Prospectus Supplement
shall consist of Annexes X-0, X-0, X-0, X-0, X-0 and B thereto (insofar as the
information contained in such annexes
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relates to the Mortgage Loans), the diskette which accompanies the Prospectus
Supplement (insofar as such diskette is consistent with such Annexes X-0, X-0,
X-0, X-0, X-0 and B) and the following sections of the Prospectus Supplement (to
the extent they relate to the Seller or the Mortgage Loans and exclusive of any
statements in such sections that purport to summarize the servicing and
administration provisions of the Pooling and Servicing Agreement): "Summary of
Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers," "Summary of
Prospectus Supplement--The Underlying Mortgage Loans and the Mortgaged Real
Properties," "Risk Factors--Risks Related to the Underlying Mortgage Loans," and
"Description of the Mortgage Pool." The "Specified Portions" of the Memorandum
shall consist of the Specified Portions of the Prospectus Supplement and
"Summary of the Offering Memorandum--Relevant Parties--Mortgage Loan Sellers"
and "--Carolina Place Non-Trust Mortgage Loan Noteholder".
(e) The certificate of incorporation and by-laws of the Seller, and a
certificate of good standing of the Seller issued by the State of New York 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), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the sale of the Mortgage Loans by the Seller to
the Purchaser.
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 or
Initial Purchaser 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, or 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
14
review by prospective investors (the items in (A), (B) and (C) above being
defined as the "Disclosure Material"), or (ii) arise out of or are based upon
the omission or alleged omission to state in the Disclosure Material (in the
case of Computational Materials and ABS Term Sheets, when read in conjunction
with the Prospectus Supplement, in the case of items similar to Computational
Materials and ABS Term Sheets, when read in conjunction with the Memorandum, and
in the case of any summaries, reports, documents, written or computer materials,
or other information contemplated in clause (C) above, when read in conjunction
with the Memorandum) 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 (1) 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 Annexes X-0,
X-0, X-0, X-0, X-0 and B 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),
(2) 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 (which shall
include all statements in the sections constituting the Specified Portions that
purport to summarize the terms of any intercreditor, co-lender or similar
agreement relating to a Mortgage Loan, including, without limitation, those
terms thereof that address servicing and administration) of each of the
Prospectus Supplement, the Preliminary Prospectus Supplement and the Memorandum,
(3) 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 of this Agreement or (4) 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 Mortgagors or the related Mortgaged Properties
furnished to the Purchaser, the Underwriters and/or the Initial Purchasers 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 Annexes X-0, X-0, X-0, X-0, X-0 and B to the
Prospectus Supplement or the Preliminary Prospectus Supplement to the extent
such information was not materially incorrect in the Data File or such Annexes
X-0, X-0, X-0, X-0, X-0 and B, as applicable, including without limitation the
aggregation of such information with comparable information relating to the
Other Mortgage Loans. Notwithstanding the foregoing, the
15
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 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. 333-108125 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 15,
2005, as supplemented by the prospectus supplement dated June 15, 2005 (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 15, 2005 relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the offering memorandum
dated June 15, 2005, relating to the Non-Registered Certificates, including all
exhibits thereto; "Registered Certificates" shall mean the Class A-1, Class X-0,
Xxxxx X-0, Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M, Class A-J,
Class B, Class C and Class D Certificates; "Non-Registered Certificates" shall
mean the Certificates other than the Registered Certificates; "Computational
Materials" shall have the meaning assigned thereto in the no-action letter dated
May 20, 1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx Letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact disc
attached to each of the Prospectus and the Memorandum; and "Data File" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the agreed upon procedures letters dated June 6, 2005 and June 15,
2005 and rendered by Ernst & Young LLP (a "hard copy" of which Data File was
initialed on behalf of the Seller and the Purchaser).
16
(c) As promptly as reasonably practicable 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 selected by the
indemnifying party, 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
or the Initial Purchasers, as the case may be, representing all the indemnified
parties under this Section 7 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. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such
17
settlement. If an indemnifying party assumes the defense of any proceeding, it
shall be entitled to settle such proceedings with the consent of the indemnified
party or, if such settlement provides for an unconditional release of the
indemnified party in connection with all matters relating to the proceedings
that have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, which release does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party without the consent of the indemnified party.
(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, taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances. 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;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(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
18
refund the amount so paid to the party which made such payment. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchasers, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchasers, 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, the Initial Purchasers and their
directors, officers and controlling parties 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 CGMRC Mortgage Loan
Balance represents as of the Cut-off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters and the Initial Purchasers; 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
19
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.
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SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of 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
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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 and the Initial Purchasers (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, the Initial Purchasers and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 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 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. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge," such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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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
CITIGROUP GLOBAL MARKETS
REALTY CORP.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, 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, 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.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal, state
or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of, each
Mortgage Loan, and the Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan. Upon consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any pledge, lien or
security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed (except if
such Mortgage Loan is a Mortgage Loan as to which a portion of the funds
disbursed are being held in escrow or reserve accounts) and there is no
requirement for future advances thereunder by the Mortgagee.
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5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a
document separate from the Mortgage) and other agreement executed in connection
with such Mortgage Loan is a 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 (a) 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 (b) as
such enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no provision limiting
the right or ability of the Seller to assign, transfer and convey the related
Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in connection
therewith, and, as of the Cut-off Date, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, additional interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may be
limited by bankruptcy, insolvency, redemption, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). Each Mortgage
and Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a) the lien of
current real property taxes, ground rents, water charges, sewer rents and
assessments not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in paragraph (12) below
or appearing of record, none of which, individually or in the aggregate,
materially interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become due or
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materially and adversely affects the value of the Mortgaged Property, (d) other
matters to which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes with the
current use of the Mortgaged Property or the security intended to be provided by
such Mortgage or with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the value
of the Mortgaged Property, (e) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage for
such other Mortgage Loan, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the Mortgaged
Property. Except with respect to cross-collateralized and cross-defaulted
Mortgage Loans, there are no mortgage loans that are senior or pari passu with
respect to the related Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary at the time of the origination of the
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate the Mortgaged Property owned by a
Mortgagor and located on the related Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and leaseback
financing arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording or
filing, and the Mortgages, security agreements, chattel Mortgages or equivalent
documents related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and priority security interest
on such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, 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). 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
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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 or multifamily (as applicable) 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
threatened proceeding for the condemnation of all or a material portion of the
Mortgaged Property securing any Mortgage Loan.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its successors or
assigns is the named insured of such policy; such policy is assignable without
consent of the insurer and will inure to the benefit of the Trustee as mortgagee
of record; is in full force and effect upon the consummation of the transactions
contemplated by this Agreement; all premiums thereon have been paid; no material
claims have been made under such policy and the Seller has not done anything, by
act or omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing such
policy is either (x) a nationally recognized title insurance company or (y)
qualified to do business in the jurisdiction in which the related Mortgaged
Property is located to the extent required; such policy contains no material
exclusions for, or affirmatively insures (except for any Mortgaged Property
located in a jurisdiction where such insurance is not available) (a) access to a
public road (except as provided below), (b) against any loss due to
encroachments of any material portion of the improvements thereon, including
encroachments 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) except if such Mortgaged Property is operated as a
mobile home park, such Mortgaged Property is also covered by business
interruption or rental loss insurance in an amount at least equal to 12 months
of operations of the related Mortgaged Property (or in the case of a Mortgaged
Property without any elevator, 6 months); 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 or multifamily (as applicable)
mortgage lenders, but
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not less than $1 million. An architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties located in seismic
zone 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
Fitch or "Baa3" (or the equivalent) from Xxxxx'x. 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 or related Mortgage Loan documents, 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 or multifamily (as applicable) mortgage
lender with respect to a similar mortgage loan and which are set forth in the
related Mortgage or related Mortgage Loan documents, 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 or multifamily (as
applicable) mortgage lenders, or (2) the reduction of the outstanding principal
balance of the Mortgage Loan, subject in either case to requirements with
respect to leases at the related Mortgaged Property and to other exceptions
customarily provided for by prudent commercial or multifamily (as applicable)
lenders for similar mortgage loans, 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 such qualification
is 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 or related Mortgage Loan documents require 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 or Fitch of
not less than "A-" (or the equivalent) or A.M. Best of not less than "A-:V" (or
the equivalent).
14. Except as provided below, (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
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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 paragraphs 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 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 (without regard to Treasury
Regulations Sections 1.860-G(2)(a)(3) and 1.860G(2)(f)(2)), is directly secured
by a Mortgage on a commercial property or a multifamily residential property,
and either (a) 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 (b) 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 (i) as of the Testing Date, or (ii) as of
the Closing Date. For purposes of the previous sentence, (A) the fair market
value of the referenced interest in real property shall first be reduced by (1)
the amount of any lien on such interest in real property that is senior to the
Mortgage Loan, and (2) a proportionate amount of any lien on such interest in
real property that is on a parity with the Mortgage Loan, and (B) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was originated
unless (1) 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 (2) 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
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"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 and if operated in accordance with
Treasury Regulations Section 1.856-6, would constitute "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments, updates or transaction
screens thereof were performed by an environmental consulting firm independent
of the Seller and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related Mortgage
Loan, and the Seller, having made no independent inquiry other than to review
the report(s) prepared in connection with the assessment(s), updates or
transaction screens referenced herein, has no actual knowledge and has received
no notice of any material and adverse environmental condition or circumstance
affecting such Mortgaged Property that was not disclosed in such report(s). If
any such environmental report identified any Recognized Environmental Condition
(REC), as that term is defined in the Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process Designation: E
1527-00, as recommended by the American Society for Testing and Materials
(ASTM), with respect to the related Mortgaged Property and the same have not
been subsequently addressed in all material respects, then either (i) an escrow
greater than 100% of the amount identified as necessary by the environmental
consulting firm to address the REC is held by the Seller for purposes of
effecting same (and the Mortgagor has covenanted in the Mortgage Loan documents
to perform such work), (ii) the related Mortgagor 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 Mortgagor has provided an
environmental insurance policy, (iv) an operations and maintenance plan has been
or will be implemented or (v) such conditions or circumstances were investigated
further and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation. All
environmental assessments or updates that were in the possession of the Seller
and that relate to a Mortgaged Property insured by an environmental insurance
policy have been delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such policy. Annex A to
this Schedule I sets forth those Mortgage Loans (if any) as to which the related
Mortgagor obtained a secured creditor impaired property policy. The Mortgage
Loan documents require the Mortgagor 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
I-7
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, and no Mortgaged Property is the subject
of, any state or federal bankruptcy or insolvency proceeding.
22. Each Mortgage Loan is a whole loan (except with respect to an A-Note
Mortgage 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. Each Mortgage or related Mortgage Loan document contains a "due on
sale" clause, which provides for the acceleration of the payment of the unpaid
principal balance of the related 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 by devise, descent or operation of law upon the death of a
member, general partner or shareholder of the related Mortgagor, 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). Each Mortgage or
related Mortgage Loan documents require 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 May 16, 2005.
25. Except as provided below, 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, and, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) U.S. Treasury obligations sufficient to pay the Mortgage
Loans (or portions thereof) in accordance
I-8
with their terms, (b) where a release of the portion of the Mortgaged Property
was contemplated at origination and such portion was not considered material for
purposes of underwriting the Mortgage Loan, (c) where release is conditional
upon the satisfaction of certain underwriting and legal requirements and the
payment of a release price that represents not less than 125% of the appraised
value of such Mortgaged Property or the portion thereof that is being released,
or (d) as set forth on Annex B, which permit the related Mortgagor to substitute
a replacement property in compliance with REMIC Provisions or (e) which permit
the release(s) of unimproved out-parcels or other portions of the Mortgaged
Property that will not have a material adverse affect on the underwritten value
of the security for the Mortgage Loan or that were not allocated to any value in
the underwriting during the origination of the Mortgage Loan, the terms of the
related Mortgage do not provide for release of any portion of the Mortgaged
Property from the lien of the Mortgage except in consideration of payment in
full therefor.
27. Except as provided below, to the Seller's actual knowledge, based upon
a letter from governmental authorities, a legal opinion, an endorsement to the
related title policy, or based upon other due diligence considered reasonable by
prudent commercial conduit mortgage lenders in the area where the applicable
Mortgaged Property is located, as of the date of origination of such Mortgage
Loan and as of the Cut-off Date, there are no material violations of any
applicable zoning ordinances, building codes and land laws applicable to the
Mortgaged Property or the use and occupancy thereof which (a) are not insured by
an ALTA lender's title insurance policy (or a binding commitment therefor), or
its equivalent as adopted in the applicable jurisdiction, or a law and ordinance
insurance policy or (b) would have a material adverse effect on the value,
operation or net operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged Property at
the time of the origination of the Mortgage Loan lies outside of the boundaries
and building restriction lines of such property (except Mortgaged Properties
which are legal non-conforming uses), to an extent which would have a material
adverse affect on the 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
I-9
$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 complied as of the date of
origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that secures
a Mortgage Loan that is not in the Trust Fund and each Mortgage Loan that is
cross-collateralized is cross-collateralized only with other Mortgage Loans sold
pursuant to this Agreement.
I-10
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with respect to
such improvements and such policy is in full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage Loan
as of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the possession,
or under the control, of the Seller or its agent and there are no deficiencies
in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to the
related geographic area and properties comparable to the related Mortgaged
Property, as of the date of origination of the Mortgage Loan, the related
Mortgagor, the related lessee, franchisor or operator was in possession of all
material licenses, permits and authorizations then required for use of the
related Mortgaged Property, and, as of the Cut-off Date, the Seller has no
actual knowledge that the related Mortgagor, the related lessee, franchisor or
operator was not in possession of such licenses, permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan have
been in all material 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. Except as provided below, the Mortgage Loan documents for each Mortgage
Loan provide that each Mortgage Loan is non-recourse to the related Mortgagor
and an additional guarantor who is a natural person except that the related
Mortgagor accepts responsibility for fraud and/or other intentional material
misrepresentation. Furthermore, except as provided below, the Mortgage Loan
documents for each Mortgage Loan provide that the related Mortgagor shall be
liable to the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the related
Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment of
Leases set forth in the Mortgage or separate from the related Mortgage and
related to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and enforceable lien and security interest in the
related Mortgagor's interest in all leases, subleases, licenses or other
agreements pursuant to which any Person is entitled to occupy, use or possess
all or any portion of the real property.
I-11
42. With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier than
two years after the Closing Date, and (b) 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. 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) (i) 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,
(ii) an Opinion of Counsel that the defeasance complies with all applicable
REMIC Provisions, and (iii) 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 are encumbered, and none of the
Mortgage Loan documents permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the holder
thereof, by any lien securing the payment of money junior to or of equal
priority with, or superior to, the lien of the related Mortgage (other than
Title Exceptions, taxes, assessments and contested mechanics and materialmen's
liens that become payable after the 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.
I-12
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 or related Mortgage Loan documents require 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 insurance is in full force and effect;
I-13
(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 III, (A) the
related Mortgagor was required to remediate such condition or
circumstance prior to the closing of the subject Mortgage Loan, or (B)
the related Mortgagor 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 Mortgagor 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.
I-14
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained a Secured Creditor
Impaired Property Policy.
[None.]
I-15
ANNEX B (TO SCHEDULE I)
Mortgage Loans That Permit Property Substitutions
[None.]
I-16
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than 30 days after the Closing Date and such Ground Lease
permits the interest of the lessee thereunder to be encumbered by the related
Mortgage or, if consent of the lessor thereunder is required, it has been
obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is assignable to
the mortgagee under the leasehold estate and its assigns without the consent of
the lessor thereunder (or, if any such consent is required, it has been obtained
prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the mortgagee and any such action without
such consent is not binding on the mortgagee, its successors or assigns, except
termination or cancellation if (a) an event of default occurs under the Ground
Lease, (b) notice thereof is provided to the mortgagee and (c) such default is
curable by the mortgagee as provided in the Ground Lease but remains uncured
beyond the applicable cure period.
4. Such Ground Lease is in full force and effect and (a) there is no
material default, and (b) to the actual knowledge of the Seller, there is no
event which, with the passage of time or with notice and the expiration of any
grace or cure period, would constitute a material default under such Ground
Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to the
mortgagee. The ground lease or ancillary agreement further provides that no
notice given is effective against the mortgagee unless a copy has been given to
the mortgagee in a manner described in the ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to only
the Title Exceptions or (b) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee interest in the
Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the lessee
under the ground lease) to cure any curable default under such Ground Lease
before the lessor thereunder may terminate such Ground Lease.
II-1
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which can
be exercised by the mortgagee if the mortgagee acquires the lessee's rights
under the Ground Lease) that extends not less than (a) in the case of a Mortgage
Loan that fully amortizes by its Stated Maturity Date, 10 years beyond the
Stated Maturity Date and (b) in the case of a Mortgage Loan that has a Balloon
Payment due on its Stated Maturity Date, 10 years beyond the amortization term
of the Mortgage Loan.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage, taken
together, any related insurance proceeds or condemnation award (other than in
respect of a total or substantially total loss or taking) will be applied either
to the repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses, or to the payment or
defeasance of the outstanding principal balance of the Mortgage Loan, together
with any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by any commercial mortgage lender,
taking into account the relative duration of the ground lease and the related
Mortgage and the ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason, including the
rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
(SET FORTH IN SCHEDULE I)
Representation #8
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
40 Mount Kisco Commons With respect to the loans listed to
106 000 Xxxxxxxxx Xxxxxx the left, certain tenants or others
48 Yale New Haven Medical Center have a right of first refusal to
27 Wilsonville Town Center purchase the related Mortgaged
2 Novo Nordisk Headquarters Property (or portion thereof) in the
event the related Mortgagor elects to
sell the related Mortgaged Property.
While such right of first refusal
would not apply to a foreclosure
acquisition of the Mortgaged Property
by the mortgage lender, such right of
first refusal would apply to
subsequent sales of the Mortgaged
Property.
--------------------------------------------------------------------------------
Representation #13
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
25 Home Depot Shopping Center The related Mortgage Loan documents
provide that the insurance
requirements of the related Mortgage
will be deemed satisfied by the
maintenance, by Home Depot and
Circuit City, of the insurance
required under their respective
leases, or, if either or both Circuit
City or Home Depot self-insures
pursuant to its lease, by such
self-insurance.
--------------------------------------------------------------------------------
118 Eckerd Drug Store - Kutztown With respect to the loans listed to
000 Xxxxxxx Xxxxx - Xxxxx Portfolio the left, the tenant's lease permits
and the tenant has elected to
self-insure for the required
coverages under the related Mortgage
Loan Documents other than for rental
loss coverage, for which the
Mortgagor is responsible to obtain.
Such self-insurance is permitted
under the related Mortgage Loan
Documents.
--------------------------------------------------------------------------------
103 Foothill Farms With respect to each of the loans
68 000 Xxxxxxx Xxxxxx listed to the left, although required
under the terms of the related
Mortgage, earthquake coverage is not
in effect at the related Mortgaged
Property and such requirement has
been waived by Mortgagee.
--------------------------------------------------------------------------------
III-1
Representation #17
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
7 United #526- Amarillo Each loan listed to the left is
8 United #000- Xxxxxxx Xxxxx cross-collateralized and
9 United #549- Xxxxxx cross-defaulted with each of the
10 United #515- Burkburnett others.
11 United #513- Xxxxxx
12 United #501- Lubbock
13 United #509- Levelland
14 United #527- Amarillo
15 United #522- Amarillo
16 United #533- Amarillo
17 United #525- Perryton
18 United #518- Childress
--------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx - University Each loan listed to the left is
of Missouri cross-collateralized and
00 Xxxxxxxxx Xxxxxxx - Xxxxx Tech cross-defaulted with the other.
--------------------------------------------------------------------------------
24 Jefferson Commons - Ohio State Each loan listed to the left is
University cross-collateralized and
00 Xxxxxxxxx Xxxxxxx - Purdue cross-defaulted with the other.
--------------------------------------------------------------------------------
Representation #23
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
64 National City Shopping Center With respect to the loans listed to
95 Westview Shopping Center the left, the related Mortgagor has
7 United #526- Amarillo initiated an assignment and
8 United #000- Xxxxxxx Xxxxx assumption of the Mortgage Loan and
9 United #549- Xxxxxx transfer of the related Mortgaged
10 United #515- Burkburnett Property to certain specified
11 United #513- Xxxxxx transferees approved by the Mortgage
12 United #501- Lubbock Loan lender.
13 United #509- Levelland
14 United #527- Amarillo
15 United #522- Amarillo
16 United #533- Amarillo
17 United #525- Perryton
18 United #518- Childress
--------------------------------------------------------------------------------
III-2
Representation #26
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
7 United #526- Amarillo With respect to the loans listed to
8 United #000- Xxxxxxx Xxxxx the left, which are
9 United #549- Xxxxxx cross-collateralized and
10 United #515- Burkburnett cross-defaulted with each other, the
11 United #513- Xxxxxx Mortgage Loan Documents provide for
12 United #501- Lubbock the respective Mortgaged Properties
13 United #509- Levelland to be released from the effects of
14 United #527- Amarillo the cross in connection with a
15 United #522- Amarillo defeasance by: (a) delivering a
16 United #533- Amarillo defeasance deposit sufficient for all
17 United #525- Perryton remaining payments which would have
18 United #518- Childress been due under the loan or loans
being defeased; (b) meeting certain
financial tests including
debt-service-coverage ratios and
loan-to-value ratio tests; and (c)
partial defeasance of the other
cross-collateralized loan or loans in
the amount equal to 125% of the
principal balance of the note being
defeased, less the current
outstanding principal balance of such
note as of the defeasance date.
--------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx - University With respect to the loans listed to
of Missouri the left, which are
00 Xxxxxxxxx Xxxxxxx - Xxxxx Tech cross-collateralized and
cross-defaulted with each other, the
related Mortgage Loan Documents
provide for the respective Mortgaged
Property to be released from the
effects of the cross in connection
with a full defeasance of one loan
if, (i) no event of default exists,
(ii) the remaining mortgaged property
meets certain debt service coverage
ratios and loan to value ratio tests,
and (iii) the remaining undefeased
loan is partially defeased by an
amount equal to 10% of the original
principal balance of the fully
defeased loan.
--------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxxxxx - Xxxx Xxxxx With respect to the loans listed to
University the left, which are
00 Xxxxxxxxx Xxxxxxx - Purdue cross-collateralized and
cross-defaulted with each other, the
related Mortgage Loan Documents
provide for the respective Mortgaged
Property to be released from the
effects of the cross in connection
with a full defeasance of one loan
if, (i) no event of default exists,
(ii) the remaining mortgaged property
meets certain debt service coverage
ratios and loan to value ratio tests,
and (iii) the remaining undefeased
loan is partially defeased by an
amount equal to 10% of the original
principal balance of the fully
defeased loan.
--------------------------------------------------------------------------------
2 Novo Nordisk Headquarters With respect to the loans listed to
44 Arbors at Centennial Park the left, the related Mortgage Loan
00 Xxxxxxxxx Xxxxxxx Documents permit the partial release
34 Sierra Sun Apartments of a portion of the related Mortgaged
48 Yale New Haven Medical Center Property which was not allocated any
41 Speedway Shopping Center value in the underwriting during the
27 Wilsonville Town Center origination of the respective loans,
provided that certain conditions
precedent set forth in the related
Mortgage Loan Documents are
satisfied.
--------------------------------------------------------------------------------
III-3
--------------------------------------------------------------------------------
1 Carolina Place The related loan documents permit the
Mortgagor to obtain the release of
one or more parcels or outlots
proposed to be transferred to a third
party in connection with the
expansion or other development of the
related Mortgaged Property upon
satisfaction of certain conditions,
including among others, that (i) no
default or event of default have
occurred and be continuing under the
Mortgage Loan, (ii) the parcel is
vacant, non-income producing and
unimproved and (iii) the value of the
release parcel is less than 5% of the
total land value of the Mortgaged
Property or the rating agencies
confirm that the release will not
result in a downgrade, withdrawal or
qualification of the then-current
ratings assigned to the certificates.
--------------------------------------------------------------------------------
Representation #37
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
110 0000 Xxxxx Xxxxxx With respect to the single tenant
loan listed to the left, as of the
closing date of the loan, the related
Mortgaged Property did not have all
certificates of occupancy. The
related single tenant is obligated
under its lease to obtain and
maintain all required permits and
licenses under applicable law with
respect to the Mortgaged Property.
Mortgagor is obligated under the
related loan documents to use best
efforts to obtain the necessary
certificates should the tenant fail
to do so.
--------------------------------------------------------------------------------
III-4
Representation #40
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
26 Preferred Exchange Tower With respect to the loans listed to
105 Bayport Self Storage the left, the related Mortgagor is
responsible for environmental
indemnity, but there is not an
additional guarantor accepting
responsibility for same.
--------------------------------------------------------------------------------
00 Xxxxxxxx'x Xxxxx Apartments With respect to the loans listed to
37 Crossroads Shopping Center the left, there is not a warm body
7 United #526- Amarillo guarantor, however, an entity
0 Xxxxxx #000- Xxxxxxx Xxxxx guarantor and the related Mortgagor
9 United #549- Xxxxxx are liable for recourse carevouts.
10 United #515- Burkburnett
11 United #513- Xxxxxx
12 United #501- Lubbock
13 United #509- Levelland
14 United #527- Amarillo
15 United #522- Amarillo
16 United #533- Amarillo
17 United #525- Perryton
18 United #518- Childress
--------------------------------------------------------------------------------
2 Novo Nordisk Headquarters With respect to the loan listed to
the left, the related Mortgagor is
liable for recourse carveouts, but
there is not an additional guarantor
accepting responsibility for same.
--------------------------------------------------------------------------------
III-5
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
(SET FORTH IN SCHEDULE II)
General Exception
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
3 270 Technology Park With respect to the loan listed to
the left, the related mortgagor has
leased certain parking areas in the
vicinity of the related fee-owned
Mortgaged Property. These parking
leases do not conform with the
representations regarding ground
leases set forth in Schedule II and
so are exceptions to such
representations. The parking leases
are not required for zoning
compliance and were not included in
the loan originator's valuation of
the Mortgaged Property, and the
Mortgagor is permitted, under terms
and conditions set forth in the loan
documents, to terminate the parking
leases in certain circumstances set
forth in the related loan documents.
--------------------------------------------------------------------------------
Representation #3
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
0 Xxxxxx #000 - Xxxxxxx Xxxxx With respect to the loan listed to
the left, which is secured by the
Mortgagor's leasehold interest in a
ground lease, the ground lessor under
the related ground lease is required
to give notice of any default by
ground lessee to the Mortgagee,
however, the ground lease does not
provide that no notice of termination
is effective against the Mortgagee
unless a copy of such termination has
been provided to Mortgagee. In
addition, the prior written consent
of the Mortgagee is not required
before the amendment or modification
of the ground lease.
--------------------------------------------------------------------------------
Representation #8
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
0 Xxxxxx #000 - Xxxxxxx Xxxxx With respect to the loan listed to
the left, which is secured by the
Mortgagor's leasehold interest in a
ground lease, the current term of the
ground lease expires September 30,
2028, with two (2) five (5) year
extension options while the
amortization term of the Mortgage
Loan ends December 8, 2034.
--------------------------------------------------------------------------------
III-6
Representation #11
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
0 Xxxxxx #000 - Xxxxxxx Xxxxx With respect to the loan listed to
the left, which is secured by the
Mortgagor's leasehold interest in a
ground lease, the ground lease does
not specifically require the ground
lessor to enter into a new lease
following a bankruptcy, although the
ground lessor is generally required
to allow the lienholder to enter into
a new ground lease upon the
termination of the ground lease.
--------------------------------------------------------------------------------
III-7
EXHIBIT A
MORTGAGE LOAN SCHEDULE
A-1
<TABLE>
LOAN MORTGAGE LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
-----------------------------------------------------------------------------------------------------------------------------------
1 CGM 1 Carolina Place 00000 Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxxxx
2 CGM 1 Novo Nordisk Headquarters 100 & 000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx
3 CGM 1 270 Technology Park 270 Technology Xxxx Xxxxxxxxx
5 CGM 1 000 Xxxx Xxxxx 000 Xxxx Xxxxx Xxxxxx Xxxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
United Supermarket Portfolio
7 CGM 1 United # 526- Amarillo 0000 Xxxxx Xxxxxxx Xxxxxx Amarillo
8 CGM 0 Xxxxxx # 000- Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxx Xxxxxxx Falls
9 CGM 1 United # 549- Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxx
10 CGM 1 United # 515- Burkburnett 000 Xxxxx Xxxxxx X Xxxxxxxxxxx
11 CGM 1 United # 513- Xxxxxx 0000 Xxxxxxxxx Xxxxxx Xxxxxx
12 CGM 1 United # 501- Lubbock 2630 Parkway Drive Lubbock
13 CGM 1 United # 000- Xxxxxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxx
14 CGM 1 United # 527- Amarillo 0000 Xxxx Xxxxxxxx Xxxxxxxxx Amarillo
15 CGM 1 United # 522- Amarillo 0000 Xxxxxxxxxx Xxxxxx Amarillo
16 CGM 1 United # 533- Amarillo 0000 Xxxxx Xxxx Amarillo
17 CGM 1 United # 000- Xxxxxxxx 0000 Xxxxxxx 00 Xxxxx Xxxxxxxx
18 CGM 1 United # 518- Childress 2105 Avenue F Northwest Childress
-----------------------------------------------------------------------------------------------------------------------------------
EDR Portfolio I
19 CGM 0 Xxxxxxxxx Xxxxxxx - Xxxxxxxxxx xx Xxxxxxxx 0000 Xxx Xxxxxxx 00 Xxxxx Xxxxxxxx
20 CGM 0 Xxxxxxxxx Xxxxxxx - Xxxxx Tech 0000 Xxxxxxxxx Xxxxxx Xxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
22 CGM 0 Xxxxx Xxxxx 0000 00xx Xxxxxx Xxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
XXX Xxxxxxxxx XX
00 XXX 0 Xxxxxxxxx Xxxxxxx - Xxxxxx 0000 X.X. Xxxxxxx 00 Xxxx Xxxxxxxxx
24 CGM 0 Xxxxxxxxx Xxxxxxx - Xxxx Xxxxx University 0000 Xxxxxxx Xxxx Xxxxxxxx
-----------------------------------------------------------------------------------------------------------------------------------
25 CGM 1 Home Depot Shopping Center 00 Xxxxxx Xxxxxx Xxxxxxxxxx
26 CGM 1 Preferred Exchange Tower 0000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxx
27 CGM 1 Wilsonville Town Center 0000 Xxxxxxxxx Xxxxxxxxxxx Xxxx Wilsonville
30 CGM 0 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx Xxxxx Kalamazoo
32 CGM 1 North Atlanta Physicians MOB IV (R400 Building) 000 Xxxxxxx Xxxxx Xxxx Xxxxxxx
33 CGM 1 Xxxxxx Xxxxxxx Court 1 Xxxxxx Xxxxxxx Court San Francisco
34 CGM 0 Xxxxxx Xxx Xxxxxxxxxx 00000 Xxxxxxx Xxxxxxxxx Xxxx Xxxxxxxx
35 CGM 2 Glendale Park Apartments 0000 Xxxxxxx Xxxx Xxxxxxx
36 CGM 2 Governor's Point Apartments 3230 Stream Side Road Raleigh
CROSS COLLATER- MASTER PRIMARY
LOAN CUT-OFF DATE PRINCIPAL ALIZED (MORTGAGE SERVICING FEE SERVICING FEE ARD LOAN
NUMBER STATE ZIP CODE BALANCE LOAN GROUP) MORTGAGE RATE RATE RATE (YES/NO)?
--------------------------------------------------------------------------------------------------------------------------
1 NC 28134 114,200,000.00 (Note 1) No 4.5975% 0.0100% 0.0000%
2 XX 00000 53,000,000.00 No 5.4000% 0.0200% 0.0300%
3 MD 21703 51,200,000.00 No 5.4000% 0.0200% 0.0200%
5 MD 21201 37,000,000.00 No 5.2850% 0.0200% 0.0400%
--------------------------------------------------------------------------------------------------------------------------
7 TX 79109 6,183,761.42 Yes (C1) 5.4000% 0.0200% 0.0200%
8 XX 00000 4,554,364.16 Yes (C1) 5.4000% 0.0200% 0.0200%
9 XX 00000 3,839,018.99 Yes (C1) 5.4000% 0.0200% 0.0200%
10 XX 00000 3,497,243.00 Yes (C1) 5.4000% 0.0200% 0.0200%
11 XX 00000 3,203,156.65 Yes (C1) 5.4000% 0.0200% 0.0200%
12 XX 00000 2,893,173.71 Yes (C1) 5.4000% 0.0200% 0.0200%
13 XX 00000 2,869,328.89 Yes (C1) 5.4000% 0.0200% 0.0200%
14 XX 00000 2,225,518.26 Yes (C1) 5.4000% 0.0200% 0.0200%
15 XX 00000 2,217,569.96 Yes (C1) 5.4000% 0.0200% 0.0200%
16 XX 00000 2,169,880.32 Yes (C1) 5.4000% 0.0200% 0.0200%
17 XX 00000 961,741.81 Yes (C1) 5.4000% 0.0200% 0.0200%
18 XX 00000 818,672.81 Yes (C1) 5.4000% 0.0200% 0.0200%
--------------------------------------------------------------------------------------------------------------------------
00 XX 00000 19,400,000.00 Yes (C2) 5.4800% 0.0200% 0.0200%
20 XX 00000 14,500,000.00 Yes (C2) 5.4800% 0.0200% 0.0200%
--------------------------------------------------------------------------------------------------------------------------
00 XX 00000 31,500,000.00 No 5.3950% 0.0200% 0.0250%
--------------------------------------------------------------------------------------------------------------------------
23 IN 47906 14,800,000.00 Yes (C3) 5.4800% 0.0200% 0.0200%
24 XX 00000 14,700,000.00 Yes (C3) 5.4800% 0.0200% 0.0200%
--------------------------------------------------------------------------------------------------------------------------
00 XX 00000 27,000,000.00 No 5.1360% 0.0200% 0.0200%
00 XX 00000 25,000,000.00 No 5.4500% 0.0200% 0.0400%
27 OR 97070 22,893,898.48 No 5.2600% 0.0200% 0.0300%
30 XX 00000 21,600,000.00 No 5.4800% 0.0200% 0.0200%
32 GA 30342 19,900,000.00 No 5.6900% 0.0200% 0.0200%
33 XX 00000 17,980,368.56 No 5.8200% 0.0200% 0.0200%
34 XX 00000 17,660,000.00 No 5.2125% 0.0200% 0.0300%
35 XX 00000 17,250,000.00 No 5.3200% 0.0200% 0.1000%
36 NC 27613 16,240,000.00 No 5.3800% 0.0200% 0.0200%
INTEREST
RESERVE SCHED- PERIODIC PAYMENT
ADDITIONAL MORTGAGE ULED ON FIRST
LOAN INTEREST RATE LOAN MATURITY DUE DATE
NUMBER ARD AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD (DAYS) DATE AFTER CLOSING
-----------------------------------------------------------------------------------------------------------------------------------
1 Yes Balloon 2 (for 1st and 2nd occurence) 01/11/10 589,033.92 (Note 1)
2 Yes Interest Only 0 03/11/10 241,812.50
3 Yes Partial IO/Balloon 0 04/11/15 230,400.00
5 Yes Partial IO/Balloon 0 01/11/15 162,954.17
-----------------------------------------------------------------------------------------------------------------------------------
7 Yes Balloon 0 12/11/14 34,949.68
8 Yes Balloon 0 12/11/14 25,740.57
9 Yes Balloon 0 12/11/14 21,697.55
10 Yes Balloon 0 12/11/14 19,765.88
11 Yes Balloon 0 12/11/14 18,103.75
12 Yes Balloon 0 12/11/14 16,351.78
13 Yes Balloon 0 12/11/14 16,217.01
14 Yes Balloon 0 12/11/14 12,578.29
15 Yes Balloon 0 12/11/14 12,533.37
16 Yes Balloon 0 12/11/14 12,263.83
17 Yes Balloon 0 12/11/14 5,435.62
18 Yes Balloon 0 12/11/14 4,627.01
-----------------------------------------------------------------------------------------------------------------------------------
19 Yes Partial IO/Balloon 0 07/07/09 88,593.33
20 Yes Partial IO/Balloon 0 07/07/09 66,216.67
-----------------------------------------------------------------------------------------------------------------------------------
22 Yes Partial IO/Balloon 0 03/11/15 141,618.75
-----------------------------------------------------------------------------------------------------------------------------------
23 Yes Partial IO/Balloon 0 07/07/09 67,586.67
24 Yes Partial IO/Balloon 0 07/07/09 67,130.00
-----------------------------------------------------------------------------------------------------------------------------------
25 Yes Partial IO/Balloon 0 12/11/14 115,560.00
26 Yes Partial IO/Balloon 0 04/11/15 113,541.67
27 Yes Balloon 0 02/11/15 127,149.35
30 Yes Partial IO/Balloon 0 07/07/09 98,640.00
32 Yes Partial IO/Balloon 0 04/11/15 94,359.17
33 Yes Balloon 0 05/11/15 105,821.39
34 Yes Partial IO/Balloon 0 01/11/15 76,710.63
35 Yes Balloon 0 06/11/15 96,004.41
36 Yes Interest Only 0 04/11/10 73,820.57
ORIGINAL
TERM TO REMAINING STATED
MATURITY STATED ORIGINAL TERM TO REMAINING
LOAN / ARD AMORTIZATION MATURITY / ARD AMORTIZATION DEFEASANCE BORROWER'S PROPERTY PROPERTY
NUMBER (MONTHS) TERM (MONTHS) (MONTHS) TERM (MONTHS) LOAN (YES/NO)? INTEREST SIZE SIZE TYPE
-----------------------------------------------------------------------------------------------------------------
1 55 355 55 355 Yes Fee Simple 595,869 SF
2 60 Interest Only 57 Interest Only Yes Fee Simple 225,651 SF
3 120 360 118 360 Yes Fee Simple 449,289 SF
5 120 360 115 360 Yes Fee Simple 355,186 SF
-----------------------------------------------------------------------------------------------------------------
7 120 360 114 354 Yes Fee Simple 71,468 SF
8 120 360 114 354 Yes Leasehold 60,000 SF
9 120 360 114 354 Yes Fee Simple 43,900 SF
10 120 360 114 354 Yes Fee Simple 43,130 SF
11 120 360 114 354 Yes Fee Simple 43,130 SF
12 120 360 114 354 Yes Fee Simple 39,293 SF
13 120 360 114 354 Yes Fee Simple 42,800 SF
14 120 360 114 354 Yes Fee Simple 35,699 SF
15 120 360 114 354 Yes Fee Simple 36,985 SF
16 120 360 114 354 Yes Fee Simple 36,168 SF
17 120 360 114 354 Yes Fee Simple 32,800 SF
18 120 360 114 354 Yes Fee Simple 32,800 SF
-----------------------------------------------------------------------------------------------------------------
19 60 360 49 360 Yes Fee Simple 260 Units
20 60 360 49 360 Yes Fee Simple 243 Units
-----------------------------------------------------------------------------------------------------------------
22 120 360 117 360 Yes Fee Simple 191,151 SF
-----------------------------------------------------------------------------------------------------------------
23 60 360 49 360 Yes Fee Simple 336 Units
24 60 360 49 360 Yes Fee Simple 166 Units
-----------------------------------------------------------------------------------------------------------------
25 120 324 114 324 Yes Fee Simple 157,912 SF
26 120 360 118 360 Yes Fee Simple 202,107 SF
27 120 360 116 356 Yes Fee Simple 152,076 SF
30 60 360 49 360 Yes Fee Simple 324 Units
32 120 360 118 360 Yes Fee Simple 100,457 SF
33 120 360 119 359 Yes Fee Simple 97,538 SF
34 120 360 115 360 Yes Fee Simple 150 Units
35 120 360 120 360 Yes Fee Simple 810 Units
36 60 Interest Only 58 Interest Only Yes Fee Simple 344 Units
ESCROWED ESCROWED
REPLACEMENT REPLACEMENT
ESCROWED ESCROWED RESERVES RESERVES ESCROWED TI/LC
LOAN ANNUAL REAL ANNUAL INITIAL CURRENT ANNUAL RESERVES INITIAL
NUMBER LOCKBOX (YES/NO)? ESTATE TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------------------------
1 Yes, In-Place Hard, Spring 0 0 0 0 0
Cash Management: Upon
default or failure of a
1.20x XXXX
0 Xxx, Xx-Xxxxx Hard: Day 1 945,599 101,617 0 33,848 0
3 Yes, In-Place Hard: Day 1 553,762 50,909 0 67,393 3,700,000
5 Yes, In-Place Hard: Day 1 1,210,228 57,418 0 71,264 6,183,512
----------------------------------------------------------------------------------------------------------
7 No 0 0 0 0 0
8 No 0 0 0 0 0
9 Xx 0 0 0 0 0
00 Xx 0 0 0 0 0
11 Xx 0 0 0 0 0
00 Xx 0 0 0 0 0
13 Xx 0 0 0 0 0
00 Xx 0 0 0 0 0
15 Xx 0 0 0 0 0
00 Xx 0 0 0 0 0
17 Xx 0 0 0 0 0
00 Xx 0 0 0 0 0
----------------------------------------------------------------------------------------------------------
19 Yes, In-Place Hard: Day 1 157,982 0 7,042 84,504 NAP
20 Yes, In-Place Hard: Day 1 283,044 0 7,677 92,124 NAP
----------------------------------------------------------------------------------------------------------
22 Yes, In-Place Hard: Day 1 421,722 37,572 0 38,230 4,225,890
----------------------------------------------------------------------------------------------------------
23 Yes, In-Place Hard: Day 1 312,168 0 10,000 120,000 NAP
24 Yes, In-Place Hard: Day 1 324,504 0 5,229 62,748 NAP
----------------------------------------------------------------------------------------------------------
25 Xx 0 0 0 0,000 0
00 Xxx, Xx-Xxxxx Xxxx: Day 1 548,252 149,415 239,128 40,421 1,800,000
27 Yes, Springing Hard: (i) 271,363 50,680 0 0 0
If Thriftway does not
exercise its extension
option on or prior to the
date that is 1 year prior
to the expiration of the
current lease, or (ii)
Rite Aid does not exercise
its extension option on or
prior to the date 6 months
prior to expiration of
lease.
30 Yes, In-Place Hard: Day 1 463,872 0 9,125 109,500 NAP
32 No 173,705 23,430 0 20,091 500,000
33 Yes, Springing Hard: Upon 222,235 53,284 0 19,497 100,000
Borrower not occupying
Suites 205, 205C, 210 and
315 within 90 days of
closing
34 No 128,067 35,640 0 37,500 NAP
35 No 185,001 171,948 0 202,500 NAP
36 No 210,445 62,436 0 86,000 NAP
INITIAL INITIAL
DEFERRED ENVIRON
LOAN ESCROWED TI/LC RESERVES CURRENT MAINTENANCE -MENTAL
NUMBER ANNUAL DEPOSIT DEPOSIT DEPOSIT HOLDBACK RESERVE
-----------------------------------------------------------------------------------------------------------------------
1 0 0 0
2 0 1,875 0
3 0 0 0
5 296,929.80 (2005), 415,712.16 (2006), 14,638 0
296,929.80 (2007), 112,832.76 (2008),
481,026.84 (2009), 534,481.56 (2010),
356,321.04 (2011 and thereafter)
-----------------------------------------------------------------------------------------------------------------------
7 0 0 0
8 0 0 0
9 0 0 0
10 0 0 0
11 0 0 0
12 0 0 0
13 0 0 0
14 0 0 0
15 0 0 0
16 0 0 0
17 0 0 0
18 0 0 0
-----------------------------------------------------------------------------------------------------------------------
19 NAP 42,725 0
20 NAP 48,780 0
-----------------------------------------------------------------------------------------------------------------------
22 100,000 (2010 and thereafter) 107,429 0
-----------------------------------------------------------------------------------------------------------------------
23 NAP 1,500 0
24 NAP 26,875 0
-----------------------------------------------------------------------------------------------------------------------
25 0 0 0
26 0 5,000 1,500
27 0 0 0
30 NAP 0 0
32 150,686 0 0
33 146,228 19,375 0 $2,800,000, Three (3) years to achieve release,
and up to three (3) partial releases (including
final release and minimum draw of $500,000)
allowed. Release conditioned on property achieving
DSCR of 1.2 to 1.0.
34 NAP 0 0 $2,998,000, Release Conditions: (a) no Event of
Default shall exist, and (b) (i) Full Release
Conditions: The Deposit shall be released if and
only if, at any time on or before December 31,
2007 ("Outside Date"), the full loan amount of
Seventeen Million Six Hundred Sixty Thousand and
00/100 Dollars ($17,660,000.00) results in a "Debt
Service Coverage Ratio" of not less than 1:20:1.
"Debt Service Coverage Ratio" means the ratio of
(a) Lender's estimated net underwritable cash flow
from the Property over a trailing six (6) month
period (as determined by Lender and in accordance
with the requirements of any rating agency
selected by Lender in its sole discretion)
adjusted, if necessary, to reflect the results of
an audit of the Property cash flows, over (b) the
sum of six (6) regularly scheduled principal and
interest payments on the Loan); or (ii) Partial
Release Conditions: A portion of the Deposit shall
be released by Lender to Borrower, up to three
times (provided there can only be three requests
by Borrower for the full or partial release of the
Deposit), on or before the Outside Date, such that
the resulted funded portion of the Loan, after the
release of a portion of the Deposit, has a Debt
Service Coverage Ratio of not less than 1:20:1.
~~UNCF Calculation:~-As of the date of
determination, Gross Potential Income will be
determined by annualizing the current month rent
roll, with vacant units grossed to then market
rates and in-place above market rents marked to
market. Other income based on lesser of T-1 or
amount used at initial underwriting. A bad debt/
vacancy/ concession factor equal to the greater of
actual (as verified by bank statements),
underwritten or market will be applied to Gross
Potential Income (including "Other Income" subject
to vacancy). Following the initial funding,
Underwritten EGI to be determined based on the
lesser of T-1 and T-3 collections. ~~-Expenses
will be based upon the greater of trailing six
months (annualized), borrower's budget, market or
initial underwritten expenses. In any event, a 4%
management fee will be applied and a $250 per/unit
replacement and repair reserve will be applied.
Lender reserves the right to make reasonable
adjustments to UNCF.
35 NAP 316,250 0
36 NAP 0 0
LOAN
NUMBER LOC ENVIRONMENTAL INSURANCE POLICY
-----------------------------------------------------------------------------------
1
2
3 $3,700,000 LOC for Xxxxx Fargo Lease TI/LC
5
-----------------------------------------------------------------------------------
7 Yes, Pollution Liability Policy
8 Yes, Pollution Liability Policy
9 Yes, Pollution Liability Policy
10 Yes, Pollution Liability Policy
11 Yes, Pollution Liability Policy
12 Yes, Pollution Liability Policy
13 Yes, Pollution Liability Policy
14 Yes, Pollution Liability Policy
15 Yes, Pollution Liability Policy
16 Yes, Pollution Liability Policy
17 Yes, Pollution Liability Policy
18 Yes, Pollution Liability Policy
-----------------------------------------------------------------------------------
19
20
-----------------------------------------------------------------------------------
22
-----------------------------------------------------------------------------------
23
24
-----------------------------------------------------------------------------------
25
26
27
30
32
33
34
35
36
</TABLE>
<TABLE>
LOAN MORTGAGE LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
37 CGM 1 Crossroads Shopping Center 1505-1575 U.S. Xxxxx 00 Xxxxxxxxxxxx
00 XXX 0 Xxxxx Xxxx Lofts 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxxxx
40 CGM 1 Mount Kisco Commons 000 Xxxxx Xxxxxxx Xxxx Xxxxx Xxxxx
41 CGM 1 Speedway Shopping Center 00000 Xxxxxxx 00 Xxxxxxxx
42 CGM 1 Unisource Distribution Center 0000 Xxxxxxxx Xxxxx Mechanicsburg
43 CGM 1 Thousand Oaks Self Storage 0000 Xxx Xxxxxx Xxxx Xxxxxxxx Xxxx
44 CGM 2 Arbors at Centennial Park 000-000 Xxxx Xxxxx Xxxxxx Xxxx, Xxx Xxxxx
000-000 Xxxx Xxxxx Xxxxxx East
and 000-000 Xxxx Xxxxxxxxxx
Xxxxx
45 CGM 1 Northridge Center I and II 365 & 000 Xxxxxxxxxx Xxxx Xxxxxxx
47 CGM 1 Park View Office Building 0000 Xxxxxxxx Xxxx Xxxxxxxxx
XXXXX COLLATER- MASTER PRIMARY
LOAN CUT-OFF DATE PRINCIPAL ALIZED (MORTGAGE SERVICING FEE SERVICING FEE ARD LOAN
NUMBER STATE ZIP CODE BALANCE LOAN GROUP) MORTGAGE RATE RATE RATE (YES/NO)?
-------------------------------------------------------------------------------------------------------------------------
37 IN 46375 16,000,000.00 No 5.4000% 0.0200% 0.0200%
38 XX 00000 15,250,000.00 No 4.9400% 0.0200% 0.0600%
40 XX 00000 14,433,849.01 No 5.3200% 0.0200% 0.0200%
41 XX 00000 14,200,000.00 No 5.3300% 0.0200% 0.0400%
42 PA 17055 14,184,552.42 No 5.5200% 0.0200% 0.0200% Yes
00 XX 00000 14,108,009.69 No 5.3900% 0.0200% 0.0200%
44 XX 00000 14,000,000.00 No 5.2000% 0.0200% 0.0200%
45 GA 30350 13,740,000.00 No 5.4800% 0.0200% 0.0600%
47 NC 28209 13,525,000.00 No 5.5600% 0.0200% 0.0200%
INTEREST
RESERVE SCHED- PERIODIC PAYMENT
ADDITIONAL MORTGAGE ULED ON FIRST
LOAN INTEREST RATE LOAN MATURITY DUE DATE
NUMBER ARD AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD (DAYS) DATE AFTER CLOSING
-----------------------------------------------------------------------------------------------------------------------------------
37 Yes Partial IO/Balloon 0 11/11/14 72,000.00
38 Yes Partial IO/Balloon 0 03/11/10 62,779.17
40 Yes Balloon 0 02/11/15 80,699.36
41 Yes Partial IO/Balloon 0 03/11/15 63,071.67
42 12/11/10 The greater of (i) Yes ARD 0 12/11/24 99,080.70
7.52%, and (ii) 3%
plus annualized US
Treasury yield
43 Yes Balloon 0 12/11/11 79,648.76
44 Yes Partial IO/Balloon 0 01/11/15 60,666.67
45 Yes Partial IO/Balloon 0 02/11/12 62,746.00
47 Yes Partial IO/Balloon 0 12/11/14 62,665.83
ORIGINAL
TERM TO REMAINING STATED
MATURITY STATED ORIGINAL TERM TO REMAINING
LOAN / ARD AMORTIZATION MATURITY / ARD AMORTIZATION DEFEASANCE BORROWER'S PROPERTY PROPERTY
NUMBER (MONTHS) TERM (MONTHS) (MONTHS) TERM (MONTHS) LOAN (YES/NO)? INTEREST SIZE SIZE TYPE
-----------------------------------------------------------------------------------------------------------------------
37 120 360 113 360 Yes Fee Simple 152,134 SF
38 60 360 57 360 No Fee Simple 49 Units
40 120 360 116 356 Yes Fee Simple 71,404 (Note 2) SF
41 120 360 117 360 Yes Fee Simple 90,273 SF
42 72 240 66 234 Yes Fee Simple 502,440 SF
43 84 360 78 354 Yes Fee Simple 137,264 SF
44 120 360 115 360 Yes Fee Simple 140 Units
45 84 360 80 360 Yes Fee Simple 188,009 SF
47 120 360 114 360 Yes Fee Simple 125,256 SF
ESCROWED ESCROWED
REPLACEMENT REPLACEMENT
ESCROWED ESCROWED RESERVES RESERVES ESCROWED TI/LC
LOAN ANNUAL REAL ANNUAL INITIAL CURRENT ANNUAL RESERVES INITIAL
NUMBER LOCKBOX (YES/NO)? ESTATE TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------------------------
37 No 231,954 0 0 9,128 0
38 No 71,237 24,151 0 12,250 NAP
40 No 520,945 65,266 0 3,096 0
41 Yes, Springing Hard: Cash 153,993 14,510 0 0 0
sweep commences 12 months
prior to the expiration of
the Xxxxxxx Drugs lease.
The sweep is thereafter
terminated (a) if Bartell
renews for a period of 5
years or is replaced by a
tenant acceptable to
Lender and (b) the subject
must maintain at least a
1.20x coverage at a 7.0%
constant for a consecutive
period of six months.
42 Yes, Springing Hard: ARD 0 0 0 50,244 2,189,698
(12/11/09) and the sweep
is in conjunction with the
tenant's right to
terminate the lease at the
end of the 6th year of the
lease (2/11/11). The
tenant must exercise this
option 365 days prior
(2/11/10). If the tenant
does exercise this option,
the sweep will remain
in-place and all excess
cash flow will be
collected by Lender
estimated to be $690,000.
Lender will also collect
the $2,150,000 termination
fee due by the tenant. If
the tenant does not
exercise the termination
option on or about
2/11/10, and written
confirmation has been
provided to Lender, the
cash flow sweep will be
eliminated and any cash
flow collected from the
sweep will be released to
the Borrower.
43 Yes, Springing Hard: If 63,555 23,203 0 15,382 NAP
the debt service coverage
ratio falls below 1.05x to
1.00x on a 7.25% loan
constant for a period of
sixty (60) days.
44 No 274,627 22,152 0 35,000 NAP
45 Yes, In-Place Hard: Day 1 271,112 64,105 0 47,002 100,000
47 No 174,748 49,088 0 21,294 0
INITIAL INITIAL
DEFERRED ENVIRON
LOAN ESCROWED TI/LC RESERVES CURRENT MAINTENANCE -MENTAL
NUMBER ANNUAL DEPOSIT DEPOSIT DEPOSIT HOLDBACK RESERVE
-----------------------------------------------------------------------------------------------------------------
37 24,341 68,063 0
38 NAP 1,250 1,000 $1,150,000, The lender shall disburse the entire
Holdback Reserve Funds to Borrower upon the
satisfaction of each of the following
conditions:~~(i) No event of Default shall exist,
nor shall any condition exist which with the
giving of notice or the passage of time, shall
constitute an Event of Default, and Borrower shall
have provided to Lender a written certificate
certifying such matters.~~(ii) The request for
disbursement must occur no later than three (3)
years from date hereof, and within said three (3)
years, Borrower shall only be entitled to make
three (3) such requests for the disbursement of
the Holdback Reserve Funds.~~(iii) Borrower shall
have provided evidence satisfactory to Lender that
the property has achieved a Debt Service Coverage
Ratio (as defined below) of at least 1.20x to
1.00x in aggregate based on the following
definitions:~ (a) "Debt Service Coverage Ratio"
means the ratio of Adjusted Actual Property Net
Cash Flow to Adjusted Debt Service~ (b) "Adjusted
Actual Property Net Cash Flow" to be calculated as
sum of: [ (i) base rents and monthly recoveries
and (ii) any other income] minus Project expenses
allocable to such time period.~ (c) "Adjusted Debt
Service" will be determined on a product of (i)
the greater of the then current interest rate on
the Loan, as set forth in the Note, and 6.50%
multiplied by (ii) the outstanding principal
balance of the loan.
40 0 2,500 0 $1,470,000, Lender held back $1,470,000, which
will be released if 1) one or more of the three
currently vacant retail spaces are leased; 2) all
tenant improvement work have been completed on the
Holdback Tenant Space and fully paid for on a
lien-free basis; 3) tenants have unconditionally
accepted and taken occupancy of the Holdback
Tenant Space, and open for business and commenced
paying rent according the terms of the lease(s),
and all free rent periods have ended and all
amounts due to tenants have been satisfied, 3) no
default exists under the leases. Furthermore,
property must achieve a 1.20x DCR at a 7.25
constant, which equates to 1.30x on the actual
constant. The current DCR is 1.18x, and we expect
the proforma DCR to reach 1.32x.
41 0 4,581 0
42 0 6,250 0
43 NAP 0 0
44 NAP 0 0 $1,020,000, Reserve released when property
achieves a 1.20x DSCR at a 7% constant (1.27x on a
the actual 6.59% constant) in accordance with the
terms of the Holdback Reserve and Security
Agreement executed at closing.
45 189,716 0 0
47 169,096 5,000 300,000
LOAN
NUMBER LOC ENVIRONMENTAL INSURANCE POLICY
-----------------------------------------------------------------------------------
37
38
40
41
42
43
44
45
47
</TABLE>
<TABLE>
LOAN MORTGAGE LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
48 CGM 1 Yale New Haven Medical Center 111 Goose Lane Guilford
50 CGM 1 Xxxxx Corners Shopping Center 0000 Xxxxx Xxxxx Xxxxxxxxx Tracy
51 CGM 1 Grand Retail 0000 Xxxxx Xxxxxxxx Xxxxx Xxxxx
53 CGM 1 Richmond City Center 0000 XxxXxxxxx Xxxxxx Xxxxxxxx
55 CGM 1 Ranch Lake Shopping Center 0000 Xxxx Xxxxx Xxxx 00 Xxxxxxxxx
58 CGM 1 Parkway Commons 0000 Xxxx Xxxxx Xxxxxxx Plano
59 CGM 0 Xxxxxxxxxx Xxxxxx Apartments 3314 Wickslow Road Wilmington
60 CGM 2 Brookstone Apartments 0000 Xxxxx Xxxx Xxxxxxxxx Xxx Xxxxx
61 CGM 1 Camino Del Rio 2650 Camino Del Rio North San Diego
62 CGM 1 Commerce Center at Xxxxx Xxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxx Xxxx
64 CGM 1 National City Shopping Center 2525 & 0000 Xxxx Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxx and 000 Xxxxxx Xxxxxx
65 CGM 2 Xxxxxx Xxxxx Xxxxx 000 Xxxxx Xxxxx Xxxxxx Xxx Xxxxx
66 CGM 2 Copper Run at Reserve 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
67 CGM 0 Xxxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxx 0 Xxxx Xxxxxx
68 CGM 1 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx
69 CGM 1 Kirkwood Shopping Center 11890 and 00000 Xxxxxxxxxx Xxxx Xxxxxxx
70 CGM 1 Roxy Stadium 14 85 Santa Xxxx Avenue Santa Xxxx
71 CGM 1 Spring Valley International Place 0000 Xxxxxx Xxxxxx Xxxx Farmers Branch
72 CGM 2 Stone Creek Apartments 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxx
73 CGM 2 Villa del Rio Apartments 0000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxx
74 CGM 1 Orillia Station 18129 - 00000 Xxxx Xxxxxx Xxxx
Xxxxxxx
00 XXX 0 Xxxxx Xxx Residences 76, 80, 81, 87, 90 & 00 Xxxx Xxxx
Xxxxxx
78 CGM 1 Corporate Xxxxx Office Park 5029 & 5041 Corporate Xxxxx Virginia Beach
Drive
81 CGM 0 Xxxxxx Xxx Xxxxx Xxxxx 0000-0000 Xxx Xxxxxx Xxx Xxxxxx Xxxxxx
00 XXX 0 Things Remembered 000 Xxxxx Xxxxxx Xxxx Xxxxx Xxxxxxx
83 CGM 0 Xxxxx Xxxx Xxxxxxxxxx 000 Xxxxx Xxxx Xxxxxx Valley
84 CGM 1 Avondale Fiesta 00000 Xxxx Xxxxxxx Xxxx Avondale
85 CGM 1 Liberty Northwest Center 14711-14719 Northeast 29th Place Bellevue
87 CGM 1 Intech Eleven Office Building 6625 Network Way Indianapolis
CROSS COLLATER- MASTER PRIMARY
LOAN CUT-OFF DATE PRINCIPAL ALIZED (MORTGAGE SERVICING FEE SERVICING FEE ARD LOAN
NUMBER STATE ZIP CODE BALANCE LOAN GROUP) MORTGAGE RATE RATE RATE (YES/NO)?
-------------------------------------------------------------------------------------------------------------------------
48 CT 06437 13,400,000.00 No 5.5500% 0.0200% 0.0200%
50 XX 00000 12,200,000.00 No 5.5100% 0.0200% 0.0800%
00 XX 00000 12,109,896.58 No 5.5500% 0.0200% 0.1000%
53 XX 00000 10,800,000.00 No 5.7200% 0.0200% 0.0200%
00 XX 00000 10,416,348.78 No 5.1700% 0.0200% 0.0400%
58 XX 00000 10,160,000.00 No 5.4400% 0.0200% 0.0200%
59 NC 28412 10,120,000.00 No 5.0600% 0.0200% 0.0200%
60 XX 00000 9,936,909.65 No 5.5200% 0.0200% 0.0200%
61 XX 00000 9,634,273.03 No 5.3440% 0.0200% 0.0200%
62 XX 00000 9,500,000.00 No 5.4500% 0.0200% 0.0200% Yes
00 XX 00000 9,000,000.00 No 5.2300% 0.0200% 0.0200%
65 XX 00000 9,000,000.00 No 5.4300% 0.0200% 0.0200%
66 MT 59808 8,944,432.47 No 4.7800% 0.0200% 0.0200%
67 XX 00000 8,872,398.33 No 5.8500% 0.0200% 0.0500%
68 XX 00000 8,744,707.02 No 5.5400% 0.0200% 0.0200%
69 XX 00000 8,400,000.00 No 5.3700% 0.0200% 0.0800%
70 XX 00000 8,375,377.76 No 6.2100% 0.0200% 0.0700%
71 XX 00000 8,320,000.00 No 5.5300% 0.0200% 0.0200%
72 OR 97005 8,272,853.93 No 5.1050% 0.0200% 0.0400%
73 XX 00000 8,105,618.66 No 5.4300% 0.0200% 0.0200%
74 XX 00000 7,920,000.00 No 5.4500% 0.0200% 0.0200%
75 XX 00000 7,800,000.00 No 5.4800% 0.0200% 0.0200%
78 VA 23462 7,543,780.54 No 5.5200% 0.0200% 0.0800%
81 XX 00000 6,992,362.66 No 5.6500% 0.0200% 0.0200%
82 XX 00000 6,991,340.70 No 5.3800% 0.0200% 0.0200% Yes
00 XX 00000 6,952,134.72 No 5.2400% 0.0200% 0.0200%
84 AZ 85323 6,950,000.00 No 5.5400% 0.0200% 0.0500%
85 XX 00000 6,900,000.00 No 5.6100% 0.0200% 0.0200%
87 IN 46278 6,788,701.50 No 5.5500% 0.0200% 0.0800%
INTEREST
RESERVE SCHED- PERIODIC PAYMENT
ADDITIONAL MORTGAGE ULED ON FIRST
LOAN INTEREST RATE LOAN MATURITY DUE DATE
NUMBER ARD AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD (DAYS) DATE AFTER CLOSING
-----------------------------------------------------------------------------------------------------------------------------------
48 Yes Partial IO/Balloon 0 04/11/15 61,975.00
50 Yes Partial IO/Balloon 0 03/11/15 56,018.33
51 Yes Balloon 0 11/11/14 69,653.46
53 Yes Partial IO/Balloon 0 04/11/15 51,480.00
55 Yes Balloon 0 11/11/11 57,462.21
58 Yes Partial IO/Balloon 0 03/11/15 46,058.67
59 Yes Partial IO/Balloon 0 04/11/15 42,672.67
60 Yes Balloon 0 12/11/14 56,904.45
61 Yes Balloon 0 11/11/14 54,180.12
62 11/11/14 Greater of 2% plus Yes Partial IO/ARD 0 11/11/34 43,145.83
Rate or 3% plus
annualized yield
64 Yes Partial IO/Balloon 0 11/11/14 39,225.00
65 Yes Partial IO/Balloon 0 05/11/12 40,725.00
66 Yes Balloon 0 01/11/12 47,111.14
67 Yes Balloon 0 12/11/14 52,652.23
68 Yes Balloon 0 12/11/14 50,186.51
69 Yes Partial IO/Balloon 0 04/11/15 37,590.00
70 Yes Fully Amortizing 0 11/11/24 61,930.89
71 Yes Partial IO/Balloon 0 04/11/15 38,341.33
72 Yes Balloon 0 12/11/14 45,253.31
73 Yes Balloon 0 01/11/15 45,917.50
74 Yes Partial IO/Balloon 0 10/11/14 35,970.00
75 Yes Partial IO/Balloon 0 11/11/14 35,620.00
78 Yes Balloon 0 01/11/12 43,158.36
81 Yes Balloon 0 10/11/14 40,695.12
82 01/11/10 2% plus initial rate Yes ARD 0 01/11/35 39,387.89
83 Yes Balloon 0 03/11/12 47,130.00
84 Yes Partial IO/Balloon 0 12/11/14 32,085.83
85 Yes Partial IO/Balloon 0 01/11/15 32,257.50
87 Yes Balloon 0 01/11/12 38,965.98
ORIGINAL
TERM TO REMAINING STATED
MATURITY STATED ORIGINAL TERM TO REMAINING
LOAN / ARD AMORTIZATION MATURITY / ARD AMORTIZATION DEFEASANCE BORROWER'S PROPERTY PROPERTY
NUMBER (MONTHS) TERM (MONTHS) (MONTHS) TERM (MONTHS) LOAN (YES/NO)? INTEREST SIZE SIZE TYPE
-----------------------------------------------------------------------------------------------------------------------
48 120 360 118 360 Yes Fee Simple 79,259 SF
50 120 360 117 360 Yes Fee Simple 86,180 SF
51 120 360 113 353 Yes Fee Simple 66,651 SF
53 120 360 118 360 Yes Fee Simple 73,892 SF
55 84 360 77 353 Yes Fee Simple 85,565 SF
58 120 360 117 360 No Fee Simple 101,377 SF
59 120 360 118 360 Yes Fee Simple 219 Units
60 120 360 114 354 Yes Fee Simple 193 Units
61 120 360 113 353 Yes Fee Simple 71,320 SF
62 120 360 113 360 Yes Fee Simple 167,217 SF
64 120 360 113 360 Yes Fee Simple 53,504 SF
65 84 360 83 360 Yes Fee Simple 56 Units
66 84 360 79 355 Yes Fee Simple 192 Units
67 120 360 114 354 No Fee Simple 62,400 SF
68 120 360 114 354 Yes Fee Simple 10,000 SF
69 120 360 118 360 No Fee Simple 80,337 SF
70 240 240 233 233 No Fee Simple 66,718 SF
71 120 360 118 360 Yes Fee Simple 169,399 SF
72 120 360 114 354 Yes Fee Simple 192 Units
73 120 360 115 355 Yes Fee Simple 168 Units
74 120 360 112 360 Yes Fee Simple 47,062 SF
75 120 360 113 360 Yes Fee Simple 138 Units
78 84 360 79 355 Yes Fee Simple 106,019 SF
81 120 360 112 352 Yes Fee Simple 94,545 SF
82 60 360 55 355 No Fee Simple 209,835 SF
83 84 240 81 237 Yes Fee Simple 208 Units
84 120 360 114 360 Yes Fee Simple 34,127 SF
85 120 360 115 360 Yes Fee Simple 66,605 SF
87 84 360 79 355 Yes Fee Simple 89,521 SF
ESCROWED ESCROWED
REPLACEMENT REPLACEMENT
ESCROWED ESCROWED RESERVES RESERVES ESCROWED TI/LC
LOAN ANNUAL REAL ANNUAL INITIAL CURRENT ANNUAL RESERVES INITIAL
NUMBER LOCKBOX (YES/NO)? ESTATE TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------------------------
48 Yes, Springing Soft: Cash 439,115 30,911 0 11,889 0
Flow Sweep six months
prior to Yale lease
expirations (for leases
expiring in 2014) if
tenant does not renew its
lease for at least an
additional five years.
50 Yes, Springing Hard: Cash 126,974 8,666 0 12,927 0
sweep commences, and
springing hard lockbox
triggers into place six
months prior to expiration
of Food-4-Less lease. If
sweep commences, it is
then terminated if
Food-4-Less lease is
renewed or tenant is
replaced with alternative
acceptable to Lender. Cash
sweep also commences, and
springing hard lockbox
triggers into place twelve
months prior to expiration
of Walgreens lease. If
sweep commences, it is
then terminated if the
space is leased to a
tenant acceptable to
Lender with a lease
expiration beyond
12/31/2015.
51 No 134,685 5,662 0 9,998 0
53 Yes, Springing Hard: 244,377 30,414 0 16,256 0
Triggered on or prior to
one year prior to the
FoodCo lease maturity
date, if borrower does not
deliver a $400,000 LOC in
the event that FoodCo does
not renew their lease.
55 Yes, In-Place Hard: Day 1 143,841 45,604 0 12,835 0
58 Yes, Springing Hard: 245,502 16,777 0 20,274 225,000
Earlier of: (i) 06/30/11,
(ii) upon notice NDES does
not intend to extend its
lease at least five years,
or (iii) a Cure Event
59 No 69,278 58,783 0 54,750 NAP
60 No 101,576 39,934 0 49,215 NAP
61 No 139,815 15,208 0 19,156 0
62 Yes, Springing Hard: One 74,566 6,480 0 16,722 890,000
month before ARD
(11/11/14)
64 Yes, Springing Hard: Upon 105,545 15,823 0 8,496 NAP
failure of Borrower to
deliver 400,000 letter of
credit on or prior to the
date which is 6 months
prior to the expiration of
Ralph's Lease
65 No 237,254 22,747 0 14,336 NAP
66 No 92,938 25,782 0 48,000 NAP
67 No 63,809 46,975 0 9,984 0
68 Yes, Springing Hard: From 326,957 24,653 0 3,100 NAP
and after 03/01/10 through
an occurrence of a Cure
Event (earlier of (i)
Cavalli renewal or (ii)
replacement tenant
acceptable to Lender
provides an estoppel.)
69 No 154,405 32,075 0 17,674 50,000
70 Xx 0 0 0 0 0
00 Xxx, Xx-Xxxxx Xxxx: Day 1 222,850 20,935 0 42,144 0
72 No 155,991 25,359 0 51,456 NAP
73 No 86,664 36,900 0 43,176 NAP
74 No 57,606 15,464 0 7,059 0
75 No 101,827 67,201 0 38,220 NAP
78 Yes, In-Place Hard: Day 1 105,385 31,625 0 55,130 0
81 No 117,003 0 0 19,100 0
82 Yes, In-Place Hard: Day 1 0 0 0 20,984 240,000
83 No 72,922 42,000 0 52,000 NAP
84 Yes, In-Place Hard: Day 1 85,568 10,165 50,000 0 150,000
85 No 83,089 11,939 0 13,182 0
87 Yes, In-Place Hard: Day 1 143,489 20,794 0 17,904 0
INITIAL INITIAL
DEFERRED ENVIRON
LOAN ESCROWED TI/LC RESERVES CURRENT MAINTENANCE -MENTAL
NUMBER ANNUAL DEPOSIT DEPOSIT DEPOSIT HOLDBACK RESERVE
-----------------------------------------------------------------------------------------------------------------
48 55,481 0 0 $330,000, At closing, Borrower deposited an amount
of $330,000 for the Holdback Reserve. Borrower has
three opportunities in first three years of loan
to request release (in minimums of $50,000.00) of
DSCR Holdback when DSCR is not less than 1.20x,
calculated using: (A) the greater of (1) a
constant of 6.96%, or (2) actual annual P&I
payments; and the Net Cash Flow from the Property
(defined as Revenues less (W) actual annualized
operating expenses, (X) the greater of (I) 4% of
gross revenues, or (II) the actual management fee
paid, and (Y) underwritten TILC and replacement
reserves, calculated as $67,370.28 per year
("Revenues" defined as rents and scheduled
recoveries received from tenants at the property,
adjusted to accommodate an assumed vacancy rate of
5%). A DCR of 1.22x at the actual constant is
required to qualify for the release and of the
holdback.
50 41,073 0 0
51 33,361 0 0
53 0 4,375 0
55 21,391 0 0
58 125,292 16,713 0
59 NAP 42,969 0
60 NAP 0 0
61 71,763 42,144 0
62 33,588 0 0
64 0 0 0
65 NAP 0 0 $250,000, Funds released upon satisfaction of (i)
EGI shall be a minimum of 1,267,144 (ii) DSCR at
least 1.20x. Release, if it is to occur, must
occur within three (3) years of closing date.
66 NAP 0 9,550
67 32,256 0 0
68 24,228 0 0
69 40,169 469 0
70 0 0 0
71 99,060 23,438 0
72 NAP 0 0
73 NAP 0 0
74 23,531 0 0
75 NAP 11,188 0
78 132,524 0 0
81 47,751 0 0
82 0 5,313 0
83 NAP 0 0
84 0 3,750 0
85 66,329 1,575 0
87 134,282 12,563 0
LOAN
NUMBER LOC ENVIRONMENTAL INSURANCE POLICY
-----------------------------------------------------------------------------------
48
50
51
53
55
58
59
60
61
62
64
65
66
67
68
69
70
71
72
73
74
75
78
81
82
83
84
85
87
</TABLE>
<TABLE>
LOAN MORTGAGE LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
89 CGM 1 Marshall's - Swampscott, MA 000 Xxxxxxxx Xxxx Xxxxxxxxxx
90 CGM 0 Xxxxxxxxx Xxxxxxx 19010-19220 Xxxx Xxxxxx Xxxxxxxxx
00 CGM 0 Xxxxxx'x Xxxx Apartments 000 Xxxxxxx Xxxx Xxxxxxx
93 CGM 1 Mariner's Center 149, 177, 000 Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxx
94 CGM 0 Xxxxxx Xxxxx Xxxxxxxxxx 000-000 Xxxxxxxxx 00xx Xxxxxx Newport
95 CGM 1 Westview Shopping Center 0000 Xxxxx Xxxx Xxxxxxxxx
97 CGM 0 Xxxxx Xxxx Xxxxxxx 0000 Xxxxx Xxxx Xxxxxxxx
98 CGM 1 East Mesa Medical Center 0000 Xxxx Xxxxxxxx Xxxx and 0000 Xxxx
Xxxx Xxxxxxx Avenue
100 CGM 1 Central Self Xxxxxxx-0000 Xxxxxxx 0000 Xxxxxxx 0 Xxxxxxxx Xxxxx
101 CGM 2 Palm Vista 0000-0000 Xxxxxxx Xxxxxx Xxxx Xxxxx
102 CGM 1 Landmark Shopping Center 2400-2484 West Victory Boulevard Burbank
103 CGM 1 Foothill Farms 0000-0000 Xxxxxx Xxxxxxxxx Xxxxxxxxxx
104 CGM 1 Southland Landing 00000 Xxxxxxxxx Xxxxx Hayward
105 CGM 1 Bayport Self Storage 000 Xxxxxx Xxxxxx Xxxxxxx
000 CGM 1 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx
000 CGM 1 Fry's Shopping Center 2632 and 0000 Xxxxx 00xx Xxxxxx Xxxxxxx
108 CGM 1 Plymouth Green Technology Center 0000 Xxxxx Xxxxx Xxx Xxxxx
109 CGM 1 Family Village Shopping Center 3806-3816 Xxxxxxx Xxxxxx Xxxxxxxxx
000 CGM 1 0000 Xxxxx Xxxxxx 1733 Ocean Avenue Santa Xxxxxx
114 CGM 2 Tremont Village Apartments 000 Xxxxxxxx Xxxxx Valdosta
115 CGM 0 Xxxxxx Xxxxx-Xxxxx Portfolio 00-00 Xxxxxxxxx Xxxxxx Xxxxxxxx
000 CGM 1 Fiesta Mexicana Market 000-000 Xxxx 0xx Xxxxxx Xxx Xxxxxxxxxx
118 CGM 1 Eckerd Drug Store-Kutztown 00 Xxxxx Xxx Xxxxxx Xxxxxxxx
119 CGM 0 Xxxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
000 CGM 0 Xxxxxxxx Xxxxx Xxxxxxxxxx 00 Xxxxxxxx Xxxxxx Xxxxxxxxxx
121 CGM 1 University Commons 0000 Xxxxxxxxxx Xxxxxxx Sarasota
123 CGM 0 Xxxxxxxxx Xxxxxxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx
124 CGM 2 Xxxxx House Apartments 00-00 Xxxxx Xxxxx Xxxxx Xxxxxxxxxx
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b CGM NAP Carolina Place (non-pooled portion)
CROSS COLLATER- MASTER PRIMARY
LOAN CUT-OFF DATE PRINCIPAL ALIZED (MORTGAGE SERVICING FEE SERVICING FEE ARD LOAN
NUMBER STATE ZIP CODE BALANCE LOAN GROUP) MORTGAGE RATE RATE RATE (YES/NO)?
-------------------------------------------------------------------------------------------------------------------------
89 MA 01907 6,450,000.00 No 5.4500% 0.0200% 0.0200%
90 XX 00000 6,450,000.00 No 5.5500% 0.0200% 0.0200%
91 XX 00000 6,425,000.00 No 5.0400% 0.0200% 0.0200%
93 XX 00000 6,200,000.00 No 5.2800% 0.0200% 0.0200%
94 OR 97365 6,183,319.84 No 5.0200% 0.0200% 0.0500%
95 XX 00000 6,081,748.21 No 5.5000% 0.0200% 0.0400%
97 TN 38133 5,972,829.52 No 5.3600% 0.0200% 0.0400%
98 AZ 85206 5,890,000.00 No 5.5900% 0.0200% 0.0500%
000 XX 00000 5,625,942.80 No 5.6900% 0.0200% 0.0200%
000 XX 00000 5,000,000.00 No 5.5900% 0.0200% 0.1200%
000 XX 00000 5,000,000.00 No 5.4200% 0.0200% 0.0200%
000 XX 00000 5,000,000.00 No 5.2200% 0.0200% 0.0200%
000 XX 00000 4,989,550.90 No 5.3910% 0.0200% 0.0200%
000 XX 00000 4,650,000.00 No 5.5100% 0.0200% 0.0200%
000 XX 00000 4,500,000.00 No 5.5700% 0.0200% 0.0800%
000 XX 00000 4,480,000.00 No 5.5900% 0.0200% 0.0500%
000 XX 00000 4,464,879.23 No 5.4200% 0.0200% 0.0200%
000 XX 00000 4,340,000.00 No 5.6600% 0.0200% 0.0800%
000 XX 00000 4,100,000.00 No 4.8850% 0.0200% 0.0200%
000 XX 00000 3,952,182.43 No 5.6550% 0.0200% 0.0700%
000 XX 00000 3,896,681.85 No 5.9000% 0.0200% 0.0200%
000 XX 00000 3,581,998.38 No 5.8600% 0.0200% 0.0200%
000 XX 00000 3,230,497.35 No 6.0200% 0.0200% 0.0200%
000 XX 00000 2,921,000.00 No 4.9700% 0.0200% 0.0200%
000 XX 00000 2,818,000.00 No 4.9700% 0.0200% 0.0200%
000 XX 00000 2,652,289.54 No 5.6400% 0.0200% 0.0800%
000 XX 00000 2,290,000.00 No 4.9700% 0.0200% 0.0200%
000 XX 00000 1,386,000.00 No 4.9700% 0.0200% 0.0200%
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b 15,800,000.00 No 4.5975% 0.0100% 0.0000%
INTEREST
RESERVE SCHED- PERIODIC PAYMENT
ADDITIONAL MORTGAGE ULED ON FIRST
LOAN INTEREST RATE LOAN MATURITY DUE DATE
NUMBER ARD AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD (DAYS) DATE AFTER CLOSING
-----------------------------------------------------------------------------------------------------------------------------------
89 Yes Partial IO/Balloon 0 03/11/15 29,293.75
90 Yes Partial IO/Balloon 0 04/11/15 29,831.25
91 Yes Partial IO/Balloon 0 02/11/15 26,985.00
93 Yes Partial IO/Balloon 0 03/11/15 27,280.00
94 Yes Balloon 0 01/11/15 33,466.37
95 Yes Balloon 0 03/11/15 34,635.13
97 Yes Balloon 0 02/11/15 33,542.19
98 Yes Partial IO/Balloon 0 02/11/15 27,437.58
100 Yes Balloon 0 02/11/15 32,756.83
101 Yes Partial IO/Balloon 0 04/11/10 23,291.67
102 Yes Partial IO/Balloon 0 01/11/15 22,583.33
103 Yes Partial IO/Balloon 0 01/11/15 21,750.00
104 Yes Balloon 0 04/11/15 28,048.46
105 Yes Interest Only 0 02/11/10 21,647.80
106 Yes Partial IO/Balloon 0 01/11/15 20,887.50
107 Yes Partial IO/Balloon 0 11/11/14 20,869.33
108 Yes Balloon 0 01/11/15 27,419.36
109 Yes Partial IO/Balloon 0 05/11/15 20,470.33
110 Yes Interest Only 0 04/11/15 16,922.23
114 Yes Balloon 0 04/11/15 22,871.06
115 Yes Balloon 0 05/11/15 23,132.32
117 Yes Balloon 0 01/11/15 21,260.86
118 Yes Fully Amortizing 0 04/11/25 23,278.47
119 Yes Partial IO/Balloon 0 03/11/12 12,097.81
120 Yes Partial IO/Balloon 0 03/11/12 11,671.22
121 Yes Balloon 0 03/11/15 15,337.66
123 Yes Partial IO/Balloon 0 03/11/12 9,484.42
124 Yes Partial IO/Balloon 0 03/11/12 5,740.35
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b Yes Balloon 2 (for 1st and 2nd occurence) 01/11/10 670,528.98 (Note 3)
ORIGINAL
TERM TO REMAINING STATED
MATURITY STATED ORIGINAL TERM TO REMAINING
LOAN / ARD AMORTIZATION MATURITY / ARD AMORTIZATION DEFEASANCE BORROWER'S PROPERTY PROPERTY
NUMBER (MONTHS) TERM (MONTHS) (MONTHS) TERM (MONTHS) LOAN (YES/NO)? INTEREST SIZE SIZE TYPE
-----------------------------------------------------------------------------------------------------------------------
89 120 360 117 360 No Fee Simple 53,872 SF
90 120 360 118 360 Yes Fee Simple 93,026 SF
91 120 360 116 360 Yes Fee Simple 266 Units
93 120 360 117 360 Yes Fee Simple 24,205 SF
94 120 360 115 355 Yes Fee Simple 180 Units
95 120 360 117 357 Yes Fee Simple 126,113 SF
97 120 360 116 356 Yes Fee Simple 78,297 SF
98 120 360 116 360 Yes Fee Simple 56,348 SF
100 120 360 116 356 Yes Fee Simple 94,197 SF
101 60 360 58 360 Yes Fee Simple 136 Units
102 120 360 115 360 Yes Fee Simple 28,119 SF
103 120 360 115 360 Yes Fee Simple 64,813 SF
104 120 360 118 358 Yes Fee Simple 13,465 SF
105 60 Interest Only 56 Interest Only No Fee Simple 61,370 SF
106 120 360 115 360 Yes Fee Simple 44,797 SF
107 120 360 113 360 Yes Fee Simple 19,680 SF
108 120 300 115 295 Yes Fee Simple 62,375 SF
109 120 360 119 360 Yes Fee Simple 40,135 SF
110 120 Interest Only 118 Interest Only Yes Fee Simple 29,006 SF
114 120 360 118 358 Yes Fee Simple 69 Units
115 120 360 119 359 Yes Leasehold 20,445 SF
117 120 360 115 355 Yes Fee Simple 59,936 SF
118 240 240 238 238 Yes Fee Simple 13,824 SF
119 84 360 81 360 Yes Fee Simple 60 Units
120 84 360 81 360 Yes Fee Simple 36 Units
121 120 360 117 357 Yes Fee Simple 11,000 SF
123 84 360 81 360 Yes Fee Simple 54 Units
124 84 360 81 360 Yes Fee Simple 22 Units
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b 55 355 55 355 Yes Fee Simple
ESCROWED ESCROWED
REPLACEMENT REPLACEMENT
ESCROWED ESCROWED RESERVES RESERVES ESCROWED TI/LC
LOAN ANNUAL REAL ANNUAL INITIAL CURRENT ANNUAL RESERVES INITIAL
NUMBER LOCKBOX (YES/NO)? ESTATE TAXES INSURANCE DEPOSIT DEPOSIT DEPOSIT
----------------------------------------------------------------------------------------------------------
89 Yes, Springing Hard: On 0 0 0 5,331 0
12/31/13, unless a)
Marshalls has exercised
its right to renew its
lease or b) Lender
receives an estoppel from
a replacement tenant
acceptable to Lender.
90 No 121,808 31,329 0 15,814 0
91 No 139,885 0 0 66,500 NAP
93 Yes, Springing Hard: Upon: 21,090 16,696 0 3,702 0
Post Office vacates or
does not opt to exercise
extension rights for at
least 5 years on or before
11/10/13
94 No 98,791 25,164 0 49,140 NAP
95 Yes, Springing Hard: After 58,796 29,742 0 18,917 0
07/31/09, if United Lease
is not extended upon terms
acceptable to Lender to
10/31/15 or later
97 No 115,581 22,037 0 11,745 0
98 Yes, In-Place Hard: Day 1 116,489 6,703 0 11,270 100,000
100 No 19,739 9,921 0 9,400 NAP
101 No 80,820 55,876 0 44,744 NAP
102 No 70,832 8,612 0 5,624 0
103 Yes, Springing Hard: 68,750 20,209 0 10,380 NAP
Failure to provide
$250,000 LOC 1 year prior
to Albertson's rollover
104 No 74,457 7,603 0 2,020 207,070
105 Yes, Springing Soft: Upon 94,749 18,049 0 6,137 NAP
Event of Default
106 Yes, In-Place Hard: Day 1 33,281 12,898 0 8,959 285,000
107 Yes, Springing Hard: 6 49,200 9,073 0 0 0
months prior to the lease
expiration of Blockbuster
108 No 166,274 16,272 0 9,533 0
109 Yes, Springing Hard: One 52,923 19,346 128,125 6,020 0
year prior to the
expiration of the A&P
Market Lease
110 Xx 0 0 XXX XXX 0
000 Xx 37,348 10,339 0 17,250 NAP
115 No 130,901 24,744 0 3,067 0
117 No 45,611 31,582 0 8,813 0
118 No 0 1,925 0 0 0
119 No 54,990 17,723 0 15,000 NAP
120 No 29,986 8,521 0 9,000 NAP
121 No 13,885 16,184 0 1,650 0
123 No 37,092 16,368 0 13,500 NAP
124 No 17,113 5,798 0 5,500 NAP
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b
INITIAL INITIAL
DEFERRED ENVIRON
LOAN ESCROWED TI/LC RESERVES CURRENT MAINTENANCE -MENTAL
NUMBER ANNUAL DEPOSIT DEPOSIT DEPOSIT HOLDBACK RESERVE
-----------------------------------------------------------------------------------------------------------------
89 22,388 0 3,750
90 46,513 25,889 1,450
91 NAP 0 0
93 35,081 3,125 0
94 NAP 0 0
95 40,158 3,750 0
97 38,649 31,384 0
98 45,000 0 0
100 NAP 3,375 0
101 NAP 22,275 0 Lender collected $150,000 at closing. The reserve
qualifies for release when (1) the property
achieves DSCR of 1.2 to 1.0 as supported by cash
collections for the then past six (6) months at
higher of 7.0% and the actual constant (2) no
event of default exists; and (3) the reserve of
$322,366.86 for the casualty holdback has been
released.
102 14,060 688 0
103 0 0 0
104 13,465 0 0
105 NAP 0 0
106 55,000 0 0
107 0 0 0
108 91,692 0 0
109 26,903 0 0
110 0 0 0
114 NAP 0 0
115 5,111 21,875 0
117 0 3,975 0
118 0 0 0
119 NAP 0 0
120 NAP 0 0
121 11,167 0 0
123 NAP 0 0
124 NAP 0 0
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b
LOAN
NUMBER LOC ENVIRONMENTAL INSURANCE POLICY
-----------------------------------------------------------------------------------
89
90
91
93
94
95
97
98
100
101
102
103
104
105
106
107
108
109
110
114
115
117
118
119
120
121
123
124
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE CAROLINA PLACE NON-POOLED PORTION, WHICH IS
ASSOCIATED WITH THE CLASS CP-1, CP-2 AND CP-3 CERTIFICATES. THE CAROLINA PLACE
NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET MORTGAGE POOL BALANCE.
1b
</TABLE>
