EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21, 2005 (this
"Agreement"), is entered into between Countrywide Commercial Real Estate
Finance, Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement, dated as of June 1, 2005 (the "Pooling and Servicing
Agreement"), among the Purchaser as depositor, Midland Loan Services, Inc., as
master servicer (in such capacity, the "Master Servicer") and as special
servicer (in such capacity, the "Special Servicer"), and Xxxxx Fargo Bank, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined herein
(including the schedules attached hereto) have the respective meanings set forth
in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as of
June 21, 2005 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as representative of
Countrywide Securities Corporation ("Countrywide") and PNC Capital Markets, Inc.
("PNC"; Xxxxxxx Xxxxx, Countrywide and PNC, collectively, in such capacity, the
"Underwriters"), whereby the Purchaser will sell to the Underwriters all of the
Certificates that are to be registered under the Securities Act of 1933, as
amended (such Certificates, the "Publicly-Offered Certificates"). The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of June 21,
2005 (the "Certificate Purchase Agreement"), with Xxxxxxx Xxxxx, for itself and
as representative of Countrywide (together in such capacity, the "Initial
Purchasers"), whereby the Purchaser will sell to the Initial Purchasers all of
the remaining Certificates (such Certificates, the "Private Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $456,814,657 (the "Countrywide 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 Countrywide
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
$1,737,992,952 (subject to a variance of plus or minus 5%). The purchase and
sale of the Mortgage Loans shall take place on June 29, 2005 or such other date
as shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Purchase Consideration") for the Mortgage Loans
shall be equal to (i) 105.1066% of the Countrywide Mortgage Loan Balance as of
the Cut-off Date, plus (ii) $1,981,649, which amount represents the amount of
interest accrued on the Countrywide Mortgage Loan Balance at the related Net
Mortgage Rate for the period from and including the Cut-off Date up to but not
including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its designee
by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, the Closing Date Deposit (in the amount of $8,444.76) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall be delivered
to the account specified by the Master Servicer by wire transfer of immediately
available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Consideration and the satisfaction or waiver of the conditions to
closing set forth in Section 5 of this Agreement (which conditions shall be
deemed to have been satisfied or waived upon the Seller's receipt of the
Purchase Consideration), the Seller does hereby sell, transfer, assign, set over
and otherwise convey to the Purchaser, without recourse (except as set forth in
this Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance proceeds and all of the Seller's right, title and interest in
and to the Closing Date Deposit. The Mortgage Loan Schedule, as it may be
amended, shall conform to the requirements set forth in this Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on or before the
Closing Date, the documents and instruments specified below with respect to each
Mortgage Loan that are Specially Designated Mortgage Loan Documents and (ii) on
or before the date that is 30 days after the Closing Date, the remaining
documents and instruments specified below that are not Specially
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Designated Mortgage Loan Documents with respect to each Mortgage Loan (the
documents and instruments specified below and referred to in clauses (i) and
(ii) preceding, collectively, 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 for the subject Mortgage Loan,
including any power of attorney related to the execution thereof (or a lost
note affidavit and indemnity with a copy of such Mortgage Note attached
thereto), together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1, or in blank;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage), together with originals or
copies of any and all intervening assignments thereof, in each case (unless
not yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in blank)
and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series 2005-MCP1, 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 Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MCP1, Commercial Mortgage
Pass-Through Certificates, Series 2005-MCP1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed;
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(vii) the original or a copy of the policy or certificate of lender's
title insurance or, if such policy has not been issued or located, an
original or copy of an irrevocable, binding commitment (which may be a pro
forma policy or a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior to
the Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, a UCC Financing Statement assignment, in form
suitable for filing in favor of Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MCP1, Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, as assignee, or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit, in each case relating to
the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall 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 with respect to the Mortgage Loans, 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 such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage Loans
by the Master Servicer in connection with its duties under the Pooling and
Servicing Agreement, and (c) are in the possession or under the control of the
Seller, together with all unapplied escrow amounts and reserve amounts in the
possession or under the control of the Seller that relate to the Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the Master
Servicer (or, at the direction of the Master Servicer, to the appropriate
sub-servicer); provided that the Seller shall not be required to deliver
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any draft documents, privileged or other communications, credit underwriting or
due diligence analyses, credit committee briefs or memoranda or other internal
approval documents or data or internal worksheets, memoranda, communications or
evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee, for
its administrative convenience in reviewing the Mortgage Files, a mortgage loan
checklist for each Mortgage Loan. The foregoing sentence notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because the
delivery of the mortgage loan checklist is being provided to the Trustee solely
for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and the Seller
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller's directors and
officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
fraudulent transfer, reorganization, receivership or moratorium, (B) other
laws relating to or affecting the rights of creditors generally, or (C)
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's 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 default (or an event which, with
notice or lapse of time, or both, would constitute a
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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 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 materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (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) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Seller, results or will result in
the creation or imposition of any lien on any of the Seller's assets or
property that would have a material adverse effect upon the Seller's
ability to perform its duties and obligations under this Agreement or
materially impair the ability of the Purchaser to realize on the Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Seller, threatened against the Seller in any
court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
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Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the Trustee
for the benefit of the Certificateholders as of the Closing Date (unless a
different date is specified therein), with respect to (and solely with respect
to) each Mortgage Loan, subject, however, to the exceptions set forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of the
Certificateholders therein, cure such Document Defect or Breach, as the case may
be, in all material respects, which shall include payment of losses and any
Additional Trust Fund Expenses associated therewith or, if such Document Defect
or Breach (other than omissions due solely to a document not having been
returned by the related recording office) cannot be cured within such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the purposes of
this clause (i), shall include an REO Loan) at the applicable Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii), shall include
an REO Loan) not later than the end of such 90-day period (and in no event later
than the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Collection Account any Substitution Shortfall Amount in
connection therewith; provided, however, that, unless the Document Defect or
Breach would cause the Mortgage Loan not to be a Qualified Mortgage, if such
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, the Seller shall
have an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan (which, for purposes of such
repurchase or substitution, shall include an REO Loan)); and provided, further,
that with respect to such additional 90-day period, the Seller shall have
delivered an officer's certificate to the Trustee setting forth the reason(s)
such Document Defect or Breach is not capable of being cured within the initial
90-day period and what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to a Specially
Designated Mortgage Loan Document) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any borrower or third party
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with respect to the Mortgage Loan, establishing the validity or priority of any
lien on any collateral securing the Mortgage Loan or for any immediate servicing
obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which 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 Loan
Group (without regard to this paragraph) and is not cured as provided for above,
shall be deemed to constitute a Document Defect or Breach, as the case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for purposes of
this paragraph and the Seller shall be required to repurchase or substitute all
such Crossed Loans unless (1) the weighted average debt service coverage ratio
for all the remaining Crossed Loans for the four calendar quarters immediately
preceding such repurchase or substitution is not less than the weighted average
debt service coverage ratio for all such Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding such
repurchase or substitution, and (2) the weighted average loan to-value ratio for
the remaining Crossed Loans determined at the time of repurchase or substitution
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller shall not be greater than the weighted average loan-to-value ratio for
all such Crossed Loans, including the affected Crossed Loan determined at the
time of repurchase or substitution based upon an appraisal obtained by the
Special Servicer at the expense of the Seller; provided, that if such debt
service coverage and loan-to-value criteria are satisfied, any other Crossed
Loan (that is not the Crossed Loan directly affected by the subject Document
Defect or Breach), shall be released from its cross-collateralization and
cross-default provision so long as such Crossed Loan (that is not the Crossed
Loan directly affected by the subject Document Defect or Breach) is held in the
Trust Fund; and provided, further, that the repurchase or replacement of less
than all such Crossed Loans and the release of any Crossed Loan from a
cross-collateralization and cross-default provision shall be further subject to
(i) the delivery by the Seller to the Trustee, at the expense of the Seller, of
an Opinion of Counsel to the effect that such release would not cause either of
REMIC I or REMIC II to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions and (ii) the consent of the
Controlling Class Representative (if one is then acting), which consent shall
not be unreasonably withheld or delayed. In the event that one or more of such
other 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 Loan Group. All
documentation relating to the termination of the cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at the expense
of the Seller and, where required, with the consent of the related borrower. For
a period of two years from the Closing Date, so long as there remains any
Mortgage File relating to a Mortgage Loan as to which there is any uncured
Document Defect or Breach known to the Seller, the Seller shall provide, once
every ninety days, the officer's certificate to the Trustee described above as
to the reason(s) such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure; provided, however, that, without limiting
the effect of the foregoing provisions of this Section 3(c), if such Document
Defect or Breach shall materially and adversely affect the value of such
Mortgage Loan or the interests of the holders of the Certificates therein
(subject to
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the last proviso in the sole sentence of the preceding paragraph), the Seller
shall in all cases on or prior to the second anniversary of the Closing Date
either cause such Document Defect or Breach to be cured or repurchase or
substitute for the affected Mortgage Loan. The delivery of a commitment to issue
a policy of lender's title insurance as described in representation 8 set forth
on Schedule I hereto in lieu of the delivery of the actual policy of lender's
title insurance shall not be considered a Document Defect or Breach with respect
to any Mortgage File if such actual policy of insurance is delivered to the
Trustee or a Custodian on its behalf not later than the 90th day following the
Closing Date.
To the extent that the Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above in this Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies against the
other's Primary Collateral (as defined below), but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loan(s),
so long as such exercise does not materially impair the ability of the other
party to exercise its remedies against the Primary Collateral securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary Collateral
securing the Crossed Loan(s) held by such party, then the Seller and the
Purchaser shall forbear from exercising such remedies until the Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be modified in
a manner consistent with this Agreement to remove the threat of material
impairment as a result of the exercise of remedies. Any reserve or other cash
collateral or letters of credit securing the Crossed Loans shall be allocated
between such Crossed Loans in accordance with the Mortgage Loan documents, or,
if the related Mortgage Loan documents do not so provide, then on a pro rata
basis based upon their outstanding Stated Principal Balances. Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the related
cross-collateralization and/or cross-default provisions, the Seller shall
furnish to the Trustee an Opinion of Counsel that such modification shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section 3(c),
if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released), (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
documents and the Seller provides an opinion of counsel to the effect that such
release would not cause either of REMIC I or REMIC II to fail to qualify as a
REMIC under the Code or result in the imposition of any tax on "prohibited
transactions" or "contributions" after the Startup Day under the REMIC
Provisions and (iii) each Rating Agency then rating the
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Certificates shall have provided written confirmation that such release would
not cause the then-current ratings of the Certificates rated by it to be
qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure of
such breach by the Seller, which cure shall be effected through the payment by
the Seller of such costs and expenses (without regard to whether such costs and
expenses are material or not) specified in such representation that have not, at
the time of such cure, been received by the Master Servicer or the Special
Servicer from the related Mortgagor and not a repurchase or substitution of the
related Mortgage Loan. Following the Seller's remittance of funds in payment of
such costs and expenses, the Seller shall be deemed to have cured the breach of
representation 30 in all respects. To the extent any fees or expenses that are
the subject of a cure by the Seller are subsequently obtained from the related
Mortgagor, the cure payment made by the Seller shall be returned to the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller, acting in
its sole discretion, may effect a repurchase or substitution (in accordance with
the provisions of this Section 3(c) setting forth the manner in which a Mortgage
Loan may be repurchased or substituted) of a Mortgage Loan, as to which
representation 30 set forth on Schedule I has been breached, in lieu of paying
the costs and expenses that were the subject of the breach of representation 30
set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the applicable Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as applicable, in the Collection Account, and, if applicable, the
delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, (i) the Trustee shall be required to execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller the legal and beneficial ownership of each
repurchased Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the Master Servicer and the Special
Servicer shall release to the Seller any Escrow Payments and Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
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 REMIC I, as applicable. No substitution of a Qualified Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under this
Agreement if, after such substitution, the aggregate of the Stated Principal
Balances of all
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Qualified Substitute Mortgage Loans which have been substituted for deleted
Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of all the
Mortgage Loans and the Other Mortgage Loans. Periodic Payments due with respect
to any Qualified Substitute Mortgage Loan on or prior to the related date of
substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the Purchaser.
In order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents, warrants and covenants for the benefit of the Seller as of the date
hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, fraudulent
transfer, reorganization, receivership or moratorium, (B) other laws relating to
or affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser and
the Purchaser's performance and compliance with the terms of this Agreement will
not (A) violate the Purchaser's articles of incorporation or bylaws, (B) violate
any law or regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material contract, agreement or other instrument to which the Purchaser is a
party or by which the Purchaser is bound, which default might have consequences
that would, in the Purchaser's reasonable and good faith judgment, materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to
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the execution of this Agreement or the performance by the Purchaser of its
obligations under this Agreement (except to the extent such consent has been
obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default might have
consequences that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or operations
of the Purchaser or its properties or might have consequences that would
materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP on the
Closing Date. The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
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(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 have the ability to
comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firm of Ernst
& Young LLP and PricewaterhouseCoopers LLP, in form satisfactory to the
Purchaser and relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus and Prospectus Supplement,
respectively; and
(g) The Seller shall have executed and delivered concurrently herewith
that certain Indemnification Agreement, dated as of June 21, 2005, among the
Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., PNC Bank, National Association,
the Purchaser, the Underwriters and the Initial Purchasers. Both parties agree
to use their best reasonable efforts to perform their respective obligations
hereunder in a manner that will enable the Purchaser to purchase the Mortgage
Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of June 29, 2005,
between the Seller and Midland Loan Services, Inc. duly executed by such
parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement are
true and correct in all material respects at and as of the Closing Date with the
same effect as if made on such date; and (ii) the Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or therein,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters
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and Initial Purchasers may rely, to the effect that (i) such officer has
carefully examined the Specified Portions (as defined below) of the Prospectus
Supplement and nothing has come to his attention that would lead him to believe
that the Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, and (ii) such officer has carefully
examined the Specified Portions of the Private Placement Memorandum, dated as of
June 21, 2005 (the "Memorandum") (pursuant to which certain classes of the
Private Certificates are being privately offered) and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Memorandum, as of the date thereof or as of the Closing Date, included or
include any untrue statement of a material fact relating to the Mortgage Loans
or omitted or omit to state therein a material fact necessary in order to make
the statements therein related to the Mortgage Loans, in the light of the
circumstances under which they were made, not misleading. The "Specified
Portions" of the Prospectus Supplement shall consist of Annex A-1 thereto,
entitled "Certain Characteristics of the Mortgage Loans" (insofar as the
information contained in Annex A-1 relates to the Mortgage Loans sold by the
Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled "Certain
Statistical Information Regarding the Mortgage Loans" (insofar as the
information contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral Term Sheet" (insofar as the information contained in Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies the Prospectus Supplement (insofar as such diskette is consistent
with Annex X-0, Xxxxx X-0 and/or Annex B), and the following sections of the
Prospectus Supplement (only to the extent that any such information relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and exclusive of
any statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers,"
"Summary of Prospectus Supplement--The Mortgage Loans And The Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool". The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors or
a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the Seller issued by
the State of California not earlier than thirty (30) days prior to the Closing
Date;
(f) A written opinion of counsel for the Seller relating to corporate
and enforceability matters (which opinion may be from in-house counsel, outside
counsel or a combination thereof), reasonably satisfactory to the Purchaser, its
counsel and the Rating Agencies, dated the Closing Date and addressed to the
Purchaser, the Trustee, the Underwriters,
14
the Initial Purchasers and each of the Rating Agencies, together with such other
written opinions, including as to insolvency matters, as may be required by the
Rating Agencies; and
(g) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the transaction
expenses incurred in connection with the transactions contemplated herein as set
forth in the closing statement prepared by the Purchaser and delivered to and
approved by the Seller on or before the Closing Date, and in the memorandum of
understanding to which the Seller and the Purchaser (or affiliates thereof)] are
parties with respect to the transactions contemplated by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the Seller,
then, (a) it is the express intent of the parties that such conveyance be deemed
a pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller, and (b) (i) this Agreement shall also be
deemed to be a security agreement within the meaning of Article 9 of the UCC of
the applicable jurisdiction; (ii) the conveyance provided for in Section 2 of
this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls), from
time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 of this Agreement
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the UCC of the applicable
jurisdiction; and (v) notifications to persons (other than the Trustee) holding
such property, and acknowledgments, receipts or confirmations from persons
(other than the Trustee) holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing
15
Agreement. The Seller does hereby consent to the filing by the Purchaser of
financing statements relating to the transactions contemplated hereby without
the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
facsimile or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law that prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party that
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If
16
the party that commenced or instituted the action, suit or proceeding shall
dismiss or discontinue it without the concurrence of the other party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries hereof), the
Initial Purchasers (also as intended third party beneficiaries hereof) and their
permitted successors and assigns. This Agreement is enforceable by the
Underwriters, the Initial Purchasers and the other third party beneficiaries
hereto in all respects to the same extent as if they had been signatories
hereof.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party hereto against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, including, without
limitation, any defined terms therein, unless the Seller has consented to such
amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement (including, without limitation, Schedule I hereto)
is made with respect to a Person's "knowledge," such statement refers to such
Person's employees or agents who were or are responsible for or involved with
the indicated matter and have actual knowledge of the matter in question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage Loans
in a Crossed Loan Group shall be the property identified in the Mortgage Loan
Schedule as corresponding thereto. The provisions of
17
this Agreement, including, without limitation, each of the representations and
warranties set forth in Schedule I hereto and each of the capitalized terms used
herein but defined in the Pooling and Servicing Agreement, shall be interpreted
in a manner consistent with this Section 20. In addition, if there exists with
respect to any Crossed Loan Group only one original of any document referred to
in the definition of "Mortgage File" in this Agreement and covering all the
Mortgage Loans in such Crossed Loan Group, the inclusion of the original of such
document in the Mortgage File for any of the Mortgage Loans in such Crossed Loan
Group shall be deemed an inclusion of such original in the Mortgage File for
each such Mortgage Loan.
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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
COUNTRYWIDE COMMERCIAL REAL ESTATE
FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Address for Notices:
Telecopier No.: (000) 000 0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
COUNTRYWIDE MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively conveyed
to the Purchaser all legal and beneficial interest in and to each Mortgage Loan
free and clear of any pledge, lien, charge, security interest or other
encumbrance (except for certain servicing rights as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing rights
purchase agreements pertaining thereto); provided that recording and/or filing
of various transfer documents are to be completed after the Closing Date as
contemplated hereby and by the Pooling and Servicing Agreement. The sale of the
Mortgage Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained. Each Mortgage Note is, or shall be as of the Closing Date, properly
endorsed to the Purchaser or its designee and each such endorsement is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for such
Mortgage Loan in June 2005 without giving effect to any applicable grace period,
nor was any such payment 30 days or more delinquent in the twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June 2005, without
giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are pari
passu with the lien of such Mortgage, in any event subject, however, to the
following (collectively, the "Permitted Encumbrances"): (a) the lien for current
real estate taxes, ground rents, water charges, sewer rents and assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding upon
the title insurer); (c) exceptions and exclusions specifically referred to in
such lender's title insurance policy (or, if not yet issued, referred to in a
pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not, individually
or in the aggregate, materially interfere with the security intended to be
provided by the related Mortgage, the current principal use of the related
Mortgaged Property, the Value of the Mortgaged Property or the current ability
of the related Mortgaged Property to generate income sufficient to service such
Mortgage Loan. The related assignment of such Mortgage executed and delivered in
favor of the Trustee is in recordable form (but for insertion of the name and
address of the assignee and any related recording information which is not yet
available to the Seller) and constitutes a legal, valid, binding and, subject to
the limitations and exceptions set forth in representation 13 below, enforceable
assignment of such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate instrument
or as part of the Mortgage) that relates to and was delivered in connection with
each Mortgage Loan and that establishes and creates a valid, subsisting and,
subject to the limitations and exceptions set forth in representation 13 below,
enforceable first priority lien on and security interest in, subject to
applicable law, the property, rights and interests of the related Mortgagor
described therein, except for Permitted Encumbrances and except that a license
may have been granted to the related Mortgagor to exercise certain rights and
perform certain obligations of the lessor under the relevant lease or leases,
including, without limitation, the right to operate the related leased property
so long as no event of default has occurred under such Mortgage Loan; and each
assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage, executed and
delivered in favor of the Trustee is in recordable form (but for insertion of
the name of the assignee and any related recording information which is not yet
available to the Seller), and constitutes a legal, valid, binding and, subject
to the limitations and exceptions set forth in representation 13 below,
enforceable assignment of such Assignment of Leases from the relevant assignor
to the Trustee. The related Mortgage or related Assignment of Leases, subject to
applicable law, provides for the appointment of a receiver for the collection of
rents or for the related mortgagee to enter into possession to collect the rents
or provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
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amendments or supplements thereto included in the related Mortgage File) has not
been impaired, waived, modified, altered, satisfied, canceled, subordinated or
rescinded, (b) neither the related Mortgaged Property nor any material portion
thereof has been released from the lien of such Mortgage and (c) the related
Mortgagor has not been released from its obligations under such Mortgage, in
whole or in material part. With respect to each Mortgage Loan, since the later
of (a) May 31, 2005 and (b) the closing date of such Mortgage Loan, the Seller
has not executed any written instrument that (i) impaired, satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified or altered
any material term of such Mortgage Loan, (iii) released the Mortgaged Property
or any material portion thereof from the lien of the related Mortgage, or (iv)
released the related Mortgagor from its obligations under such Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding sentence does not
relate to any release of escrows by the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in good repair and
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan (except in any such case where an
escrow of funds, letter of credit or insurance coverage exists sufficient to
effect the necessary repairs and maintenance). As of the date of origination of
the Mortgage Loan, there was no proceeding pending for the condemnation of all
or any material part of the related Mortgaged Property. As of the Closing Date,
the Seller has not received notice and has no knowledge of any proceeding
pending for the condemnation of all or any material portion of the Mortgaged
Property securing any Mortgage Loan. As of the date of origination of each
Mortgage Loan and, to the Seller's knowledge, as of the date hereof, (a) none of
the material improvements on the related Mortgaged Property encroach upon the
boundaries and, to the extent in effect at the time of construction, do not
encroach upon the building restriction lines of such property, and none of the
material improvements on the related Mortgaged Property encroached over any
easements, except, in each case, for encroachments that are insured against by
the lender's title insurance policy referred to in representation 8 below or
that do not materially and adversely affect the Value or current use of such
Mortgaged Property and (b) no improvements on adjoining properties encroached
upon such Mortgaged Property so as to materially and adversely affect the Value
of such Mortgaged Property, except those encroachments that are insured against
by the lender's title insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has yet
to be issued, by a pro forma policy or a "marked up" commitment binding on the
title insurer) in the original principal amount of such Mortgage Loan after all
advances of principal, insuring that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the related
Mortgaged Property is made up of more than one parcel of property, each of which
is secured by a separate Mortgage, such Mortgage (and therefore the related
Title Policy) may be in an amount less than the original principal amount of the
Mortgage Loan, but is not less than the allocated amount of subject parcel
constituting a portion of the related Mortgaged Property. Such Title Policy (or,
if
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it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the transfer
and assignment of the related Mortgage Loan to the Trustee, such Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) inures to
the benefit of the Trustee as sole insured without the consent of or notice to
the insurer. Such Title Policy contains no exclusion for whether, or it
affirmatively insures (unless the related Mortgaged Property is located in a
jurisdiction where such affirmative insurance is not available) that, (a) the
related Mortgaged Property has access to a public road, and (b) the area shown
on the survey, if any, reviewed or prepared in connection with the origination
of the related Mortgage Loan is the same as the property legally described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or reserve accounts
documented as part of the Mortgage Loan documents and the rights to which are
transferred to the Trustee, pending the satisfaction of certain conditions
relating to leasing, repairs or other matters with respect to the related
Mortgaged Property), and there is no obligation for future advances with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each Mortgage
Loan, together with applicable state law, contain customary and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged Property of
the principal benefits of the security intended to be provided thereby,
including, without limitation, foreclosure or similar proceedings (as applicable
for the jurisdiction where the related Mortgaged Property is located). None of
the Mortgage Loan documents contains any provision that expressly excuses the
related Mortgagor from obtaining and maintaining insurance coverage for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage Loan
is a deed of trust, then (a) a trustee, duly qualified under applicable law to
serve as such, has either been properly designated and currently so serves or
may be substituted in accordance with the Mortgage and applicable law, and (b)
no fees or expenses are payable to such trustee by the Seller, the Purchaser or
any transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release of
the related Mortgaged Property or related security for such Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of the
related Mortgage Loan related to asbestos-containing materials and lead-based
paint), (a) an environmental site assessment meeting ASTM standards and covering
all environmental hazards typically assessed for similar properties including
use, type and tenants of the related Mortgaged Property, a transaction screen
meeting ASTM standards or an update of a previously conducted environmental site
assessment (which update may have been performed pursuant to a database update),
was performed by an independent third-party environmental consultant (licensed
to the extent required by applicable
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state law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "Environmental Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve (12) months
prior to the date hereof, (c) a copy of each such Environmental Report has been
delivered to the Purchaser, and (d) either: (i) no such Environmental Report, if
any, reveals that as of the date of the report there is a material violation of
applicable environmental laws with respect to any known circumstances or
conditions relating to the related Mortgaged Property; or (ii) if any such
Environmental Report does reveal any such circumstances or conditions with
respect to the related Mortgaged Property and the same have not been
subsequently remediated in all material respects, then one or more of the
following are true--(A) one or more parties not related to the related Mortgagor
and collectively having financial resources reasonably estimated to be adequate
to cure the violation was identified as the responsible party or parties for
such conditions or circumstances, and such conditions or circumstances do not
materially impair the Value of the related Mortgaged Property, (B) the related
Mortgagor was required to provide additional security reasonably estimated to be
adequate to cure the violations and/or to obtain and, for the period
contemplated by the related Mortgage Loan documents, maintain an operations and
maintenance plan, (C) the related Mortgagor, or other responsible party,
provided a "no further action" letter or other evidence that would be acceptable
to a reasonably prudent commercial mortgage lender, that applicable federal,
state or local governmental authorities had no current intention of taking any
action, and are not requiring any action, in respect of such conditions or
circumstances, (D) such conditions or circumstances were investigated further
and based upon such additional investigation, a qualified environmental
consultant recommended no further investigation or remediation, (E) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than 2% of the outstanding principal balance of the
related Mortgage Loan, (F) there exists an escrow of funds reasonably estimated
to be sufficient for purposes of effecting such remediation, (G) the related
Mortgaged Property is insured under a policy of insurance, subject to certain
per occurrence and aggregate limits and a deductible, against certain losses
arising from such circumstances and conditions or (H) a responsible party
provided a guaranty or indemnity to the related Mortgagor to cover the costs of
any required investigation, testing, monitoring or remediation and, as of the
date of origination of the related Mortgage Loan, such responsible party had
financial resources reasonably estimated to be adequate to cure the subject
violation in all material respects. To the Seller's actual knowledge and without
inquiry beyond the related Environmental Report, there are no significant or
material circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in all
material respects with all applicable federal, state and local environmental
laws and regulations. Each of the Mortgage Loans identified on Annex C hereto is
covered by a secured creditor impaired property environmental insurance policy
and each such policy is noncancellable during its term, is in the amount at
least equal to 125% of the principal balance of the Mortgage Loan, has a term
ending no sooner than the date which is five years after the maturity date of
the Mortgage Loan to which it relates and either does not provide for a
deductible or the deductible amount is held in escrow and all premiums have been
paid in
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full. Each Mortgagor represents and warrants in the related Mortgage Loan
documents that except as set forth in certain environmental reports and to its
knowledge it has not used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any hazardous materials in
any manner which violates federal, state or local laws, ordinances, regulations,
orders, directives or policies governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
hazardous materials. The related Mortgagor (or affiliate thereof) has agreed to
indemnify, defend and hold the Seller and its successors and assigns harmless
from and against any and all losses, liabilities, damages, injuries, penalties,
fines, out-of-pocket expenses and claims of any kind whatsoever (including
attorneys' fees and costs) paid, incurred or suffered by or asserted against,
any such party resulting from a breach of environmental representations,
warranties or covenants given by the Mortgagor in connection with such Mortgage
Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each other
agreement executed by or on behalf of the related Mortgagor with respect to each
Mortgage Loan is the legal, valid and binding obligation of the maker thereof
(subject to any non-recourse provisions contained in any of the foregoing
agreements and any applicable state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except as
such enforcement may be limited by (i) bankruptcy, insolvency, reorganization,
receivership, fraudulent transfer and conveyance or other similar laws affecting
the enforcement of creditors' rights generally, (ii) general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and (iii) public policy considerations underlying applicable
securities laws, to the extent that such public policy considerations limit the
enforceability of provisions that purport to provide indemnification from
liabilities under applicable securities laws, and except that certain provisions
in such loan documents may be further limited or rendered unenforceable by
applicable law, but (subject to the limitations set forth in the foregoing
clauses (i) and (ii)) such limitations or unenforceability will not render such
loan documents invalid as a whole or substantially interfere with the
mortgagee's realization of the principal benefits and/or security provided
thereby. There is no valid defense, counterclaim or right of offset or
rescission available to the related Mortgagor with respect to such Mortgage
Note, Mortgage or other agreements that would deny the mortgagee the principal
benefits intended to be provided thereby, except in each case, with respect to
the enforceability of any provisions requiring the payment of default interest,
late fees, additional interest, prepayment premiums or yield maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged Property
securing a Mortgage Loan are insured under a fire and extended perils insurance
(or the equivalent) policy, in an amount at least equal to the lesser of the
outstanding principal balance of such Mortgage Loan and 100% of the full
insurable replacement cost of the improvements located on the related Mortgaged
Property, and if applicable, the related hazard insurance policy contains
appropriate endorsements to avoid the application of co-insurance and does not
permit reduction in insurance proceeds for depreciation. Each Mortgaged Property
is also covered by comprehensive general liability insurance in amounts
customarily required by prudent commercial mortgage lenders for properties of
similar types. Each Mortgaged Property securing
I-6
a Mortgage Loan is the subject of a business interruption or rent loss insurance
policy providing coverage for at least twelve (12) months (or a specified dollar
amount which is reasonably estimated to cover no less than twelve (12) months of
rental income), unless such Mortgaged Property constitutes a manufactured
housing community. If any portion of the improvements on a Mortgaged Property
securing any Mortgage Loan was, at the time of the origination of such Mortgage
Loan, in an area identified in the Federal Register by the Flood Emergency
Management Agency as a special flood hazard area (Zone A or Zone V), and flood
insurance was available, a flood insurance policy is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of: (1) the full insurable value of the related Mortgaged Property or
(2) the maximum amount of insurance available. Each Mortgaged Property located
in California or in seismic zones 3 and 4 is covered by seismic insurance to the
extent such Mortgaged Property has a probable maximum loss of greater than
twenty percent (20%) of the replacement value of the related improvements,
calculated using methodology acceptable to a reasonably prudent commercial
mortgage lender with respect to similar properties in the same area or
earthquake zone. Each Mortgaged Property located within Florida or within 25
miles of the coast of North Carolina, South Carolina, Georgia, Alabama,
Mississippi, Louisiana or Texas is insured by windstorm insurance in an amount
at least equal to the lesser of (i) the outstanding principal balance of the
related Mortgage Loan and (ii) 100% of the insurable replacement cost of the
improvements located on such Mortgaged Property (less physical depreciation).
All such hazard and flood insurance policies contain a standard mortgagee clause
for the benefit of the holder of the related Mortgage, its successors and
assigns, as mortgagee, and are not terminable (nor may the amount of coverage
provided thereunder be reduced) without at least ten (10) days' prior written
notice to the mortgagee; and no such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein has
a claims paying ability or financial strength rating from S&P or Xxxxx'x of not
less than A-minus (or the equivalent), or from A.M. Best Company of not less
than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less than
"A-" from Fitch (or the equivalent). With respect to each Mortgage Loan, the
related Mortgage Loan documents require that the related Mortgagor or a tenant
of such Mortgagor maintain insurance as described above or permit the related
mortgagee to require insurance as described above. Except under circumstances
that would be reasonably acceptable to a prudent commercial mortgage lender or
that would not otherwise materially and adversely affect the security intended
to be provided by the related Mortgage, the Mortgage Loan documents for each
Mortgage Loan provide that proceeds paid under any such casualty insurance
policy will (or, at the lender's option, will) be applied either to the repair
or restoration of all or part of the related Mortgaged Property or to the
payment of amounts due under such Mortgage Loan; provided that the related
Mortgage Loan documents may entitle the related Mortgagor to any portion of such
proceeds remaining after the repair or restoration of the related Mortgaged
Property or payment of amounts due under the Mortgage Loan; and provided,
further, that, if the related Mortgagor holds a leasehold interest in the
related Mortgaged Property, the application of such proceeds will be subject to
the terms of the related Ground Lease (as defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty insurance
policy that does not contain an express exclusion for (or, alternatively, is
covered by a separate policy that insures against property damage resulting
from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than the
lien of the related Mortgage and that have not been paid or are not otherwise
covered by an escrow of funds sufficient to pay such charge. For purposes of
this representation and warranty, real property taxes and assessments and other
charges shall not be considered delinquent until the date on which interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other due
diligence considered reasonable by prudent commercial mortgage lenders in the
lending area where the subject Mortgaged Property is located (including, without
limitation, when commercially reasonable, a representation of the related
Mortgagor at the time of origination of the subject Mortgage Loan), the
improvements located on or forming part of each Mortgaged Property securing a
Mortgage Loan are in material compliance with applicable zoning laws and
ordinances or constitute a legal non-conforming use or structure (or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property). In
the case of each legal non-conforming use or structure, the related Mortgaged
Property may be restored or repaired to the full extent of the use or structure
at the time of such casualty or law and ordinance coverage has been obtained in
an amount that would be required by prudent commercial mortgage lenders (or, if
the related Mortgaged Property may not be restored or repaired to the full
extent of the use or structure at the time of such casualty and law and
ordinance coverage has not been obtained in an amount that would be required by
prudent commercial mortgage lenders, such fact does not materially and adversely
affect the Value of the related Mortgaged Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be duly
recorded; such Ground Lease permits the interest of the lessee thereunder
to be encumbered by the related Mortgage; and there has been no material
change in the terms of such Ground Lease since its recordation, with the
exception of material changes reflected in written instruments which are a
part of the related Mortgage File; and if required by such Ground Lease,
the lessor thereunder has received notice of the lien of the related
Mortgage in accordance with the provisions of such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or
I-8
encumbrances superior to, or of equal priority with, the related Mortgage,
other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser upon
notice to, but without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained); provided that such Ground Lease
has not been terminated and all amounts owed thereunder have been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice of
any default by the lessee to the mortgagee under such Mortgage Loan; and
such Ground Lease further provides that no notice of termination given
under such Ground Lease is effective against the mortgagee under such
Mortgage Loan unless a copy has been delivered to such mortgagee in the
manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a reasonable
opportunity (including, where necessary, sufficient time to gain possession
of the interest of the lessee under such Ground Lease) to cure any default
under such Ground Lease, which is curable after the receipt of notice of
any such default, before the lessor thereunder may terminate such Ground
Lease;
(vii) such Ground Lease either (i) has an original term which extends
not less than twenty (20) years beyond the Stated Maturity Date of such
Mortgage Loan, or (ii) has an original term which does not end prior to the
5th anniversary of the Stated Maturity Date of such Mortgage Loan and has
extension options that are exercisable by the lender upon its taking
possession of the Mortgagor's leasehold interest and that, if exercised,
would cause the term of such Ground Lease to extend not less than twenty
(20) years beyond the Stated Maturity Date of such Mortgage Loan;
(viii) such Ground Lease requires the lessor to enter into a new lease
with a mortgagee upon termination of such Ground Lease for any reason,
including as a result of a rejection of such Ground Lease in a bankruptcy
proceeding involving the related Mortgagor, unless the mortgagee under such
Mortgage Loan fails to cure a default of the lessee that is susceptible to
cure by the mortgagee under such Ground Lease following notice thereof from
the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage or
related Mortgage Loan documents, taken together, any related casualty
insurance proceeds (other than de minimis amounts for minor casualties)
with respect to the leasehold interest will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses (except
in such cases where a provision entitling another party to hold and
disburse such proceeds would not be viewed as commercially unreasonable by
a prudent commercial mortgage lender), or
I-9
(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent commercial
mortgage lender in the lending area where the related Mortgaged Property is
located at the time of the origination of such Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and (ii) any such action without such consent is not binding
on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning of
Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the fair
market value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of such Mortgage Loan at the
time the Mortgage Loan was (a) originated or modified (within the meaning of
Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to the Trust
Fund, or (2) substantially all of the proceeds of such Mortgage Loan were used
to acquire, improve or protect an interest in real property and such interest in
real property was the only security for the Mortgage Loan at the time such
Mortgage Loan was originated or modified. For purposes of the previous sentence,
the fair market value of the referenced interest in real property shall first be
reduced by (1) the amount of any lien on such interest in real property that is
senior to the Mortgage Loan, and (2) a proportionate amount of any lien on such
interest in real property that is in parity with the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged Property
(other than amounts paid by the tenant as specifically provided under a related
lease or by the property manager), for the payment of any amount required by
such Mortgage Loan, except for interest accruing from the date of origination of
such Mortgage Loan or the date of disbursement of the Mortgage Loan proceeds,
whichever is later, to the date which preceded by 30 days the first due date
under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee thereunder,
is convertible by its terms into an equity ownership interest in the related
Mortgaged Property or the related Mortgagor, provides for any contingent or
additional interest in the form of participation in the cash flow of the related
Mortgaged Property, or provides for the negative amortization of interest,
except that, in the case of an ARD Loan, such Mortgage Loan provides that,
during the period commencing on or about the related Anticipated Repayment Date
and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and may
be compounded monthly and shall be payable only after the outstanding principal
of such Mortgage Loan is paid in full, and (b) a portion of the cash flow
generated by such Mortgaged Property will be applied each month to pay down the
principal balance thereof in addition to the principal portion of the related
monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no pending
actions, suits, proceedings or governmental investigations by or before any
court or governmental authority against or affecting the Mortgagor under any
Mortgage Loan or the related Mortgaged Property that, if determined adversely to
such Mortgagor or Mortgaged Property, would materially and adversely affect the
value of the Mortgaged Property as security for such Mortgage Loan or the
current ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or of
equal priority with the lien of the related Mortgage without the prior written
consent of the holder thereof or the satisfaction of debt service coverage or
similar criteria specified therein. To the Seller's knowledge, except for cases
involving other Mortgage Loans, none of the Mortgaged Properties securing the
Mortgage Loans is encumbered by any mortgage liens junior to or of equal
priority with the liens of the related Mortgage. The related Mortgage Loan
documents require the Mortgagor under each Mortgage Loan to pay all reasonable
costs and expenses related to any required consent to an encumbrance, including
any applicable Rating Agency fees, or would permit the related mortgagee to
withhold such consent if such costs and expenses are not paid by a party other
than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each Mortgaged
Property securing a Mortgage Loan (exclusive of any related personal property)
was free and clear of any and all mechanics' and materialmen's liens that were
prior or equal to the lien of the related Mortgage and that were not bonded or
escrowed for or covered by title insurance. As of the Closing Date, to the
Seller's knowledge: (i) each Mortgaged Property securing a Mortgage Loan
(exclusive of any related personal property) is free and clear of any and all
mechanics' and materialmen's liens that are prior or equal to the lien of the
related Mortgage and that are not bonded or escrowed for or covered by title
insurance, and (ii) no rights are outstanding that under law could give rise to
any such lien that would be prior or equal to the lien of the related Mortgage
and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt from,
all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date of
origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the time
of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the
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related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is cross-collateralized
with any loan which is outside the Mortgage Pool. With respect to any group of
cross-collateralized Mortgage Loans, the sum of the amounts of the respective
Mortgages recorded on the related Mortgaged Properties with respect to such
Mortgage Loans is at least equal to the total amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i) payment
in full of all amounts due under the related Mortgage Loan or (ii) delivery of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), in connection
with a defeasance of the related Mortgage Loan; provided that the Mortgage Loans
that are Crossed Loans, and the other individual Mortgage Loans secured by
multiple parcels, may require the respective mortgagee(s) to grant releases of
portions of the related Mortgaged Property or the release of one or more related
Mortgaged Properties upon (i) the satisfaction of certain legal and underwriting
requirements or (ii) the payment of a release price in connection therewith; and
provided, further, that certain Crossed Groups or individual Mortgage Loans
secured by multiple parcels may permit the related Mortgagor to obtain the
release of one or more of the related Mortgaged Properties by substituting
comparable real estate property, subject to, among other conditions precedent,
receipt of confirmation from each Rating Agency that such release and
substitution will not result in a qualification, downgrade or withdrawal of any
of its then-current ratings of the Certificates; and provided, further, that any
Mortgage Loan may permit the unconditional release of one or more unimproved
parcels of land to which the Seller did not give any material value in
underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not real
estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related Mortgage
Loan documents provide that the related Mortgagor is responsible for all
reasonable costs and expenses associated with an assumption incurred by the
related mortgagee.
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31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate that
remains fixed throughout the remaining term of such Mortgage Loan, except in the
case of an ARD Loan after its Anticipated Repayment Date and except for the
imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the Mortgage
Note or Mortgage for any Mortgage Loan (other than payments due but not yet 30
days or more delinquent); provided, however, that this representation and
warranty does not cover any default, breach, violation or event of acceleration
that pertains to or arises out of the subject matter otherwise covered by any
other representation and warranty made by the Seller in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity interest
in the related Mortgagor, is transferred or sold, other than by reason of family
and estate planning transfers, transfers by devise or descent or by operation of
law upon death, transfers of less than a controlling interest in the Mortgagor,
transfers of shares in public companies, issuance of non-controlling new equity
interests, transfers to an affiliate meeting the requirements of the Mortgage
Loan, transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to
cross-collateralized Mortgage Loans or multi-property Mortgage Loans, transfers
among co-Mortgagors, transfers of worn-out or obsolete furniture, furnishings
and equipment or transfers of a similar nature to the foregoing meeting the
requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with a
Cut-off Date Balance of $5,000,000 or more, was, as of the origination of the
Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose organizational
documents provide substantially to the effect that it was formed or organized
solely for the purpose of owning and operating one or more of the Mortgaged
Properties securing the Mortgage Loans and prohibit it from engaging in any
business unrelated to such Mortgaged Property or Properties, and whose
organizational documents further provide, or which entity represented in the
related Mortgage Loan documents, substantially to the effect that it does not
have any material assets other than those related to its interest in and
operation of such Mortgaged Property or Properties, or any indebtedness other
than as permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and apart
from any other person, that it holds itself out as a legal entity (separate and
apart from any other person), that it will not guarantee or assume the debts of
any other person, that it will not commingle assets with affiliates, and that it
will not transact business with affiliates (except to the extent required by any
cash management provisions of the related Mortgage Loan documents) except on an
arm's-length basis.
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36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been made
to the applicable governing authority for creation of separate tax lots, which
shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter into a lockbox arrangement
on the ARD Loan whereby all revenue from the related Mortgaged Property shall be
deposited directly into a designated account controlled by the applicable
servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company pursuant to escrow instructions), in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of personal
property owned by the related Mortgagor which are material to the conduct in the
ordinary course of the Mortgagor's business on the related Mortgaged Property,
subject only to purchase money security interests, personal property leases and
security interests to secure revolving lines of credit and similar financing;
and (b) one or more UCC financing statements covering such personal property
have been filed or recorded (or have been sent for filing or recording or
submitted to a title company pursuant to escrow instructions) wherever necessary
to perfect under applicable law such security interests (to the extent a
security interest in such personal property can be perfected by the filing of a
UCC financing statement under applicable law). The related assignment of such
security interest (but for insertion of the name of the assignee and any related
information which is not yet available to the Seller) executed and delivered in
favor of the Trustee constitutes a legal, valid and, subject to the limitations
and exceptions set forth in representation 13 hereof, binding assignment thereof
from the relevant assignor to the Trustee. Notwithstanding any of the foregoing,
no representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
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41. Commencement of Amortization. Except as disclosed in the
Prospectus Supplement, each Mortgage Loan begins to amortize prior to its Stated
Maturity Date or, in the case of an ARD Loan, prior to its Anticipated Repayment
Date.
42. Servicing Rights. Except as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto, no Person has been granted or conveyed the right
to service any Mortgage Loan or receive any consideration in connection
therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions
providing for recourse against the related Mortgagor, a principal of such
Mortgagor or an entity controlled by a principal of such Mortgagor, for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after an
event of default), insurance proceeds or condemnation awards. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a principal
of such Mortgagor, has agreed to indemnify the mortgagee for damages resulting
from violations of any applicable environmental laws.
44. Assignment of Collateral. There is no material collateral securing
any Mortgage Loan that is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in whole
or in part by a Ground Lease and is therefore the subject of representation 18,
the interest of the related Mortgagor in the Mortgaged Property securing each
Mortgage Loan is a fee simple interest in real property and the improvements
thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining balances
of such escrow deposits, are in the possession or under the control of Seller or
its agents (which shall include the Master Servicer). All such escrow deposits
are being conveyed hereunder to the Purchaser. Any and all material requirements
under each Mortgage Loan as to completion of any improvements and as to
disbursement of any funds escrowed for such purpose, which requirements were to
have been complied with on or before the date hereof, have been complied with in
all material respects or, if and to the extent not so complied with, the
escrowed funds (or an allocable portion thereof) have not been released except
in accordance with the terms of the related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder of
such Mortgage Loan with at least quarterly operating statements and rent rolls
(if there is more than one tenant) for the related Mortgaged Property and annual
financial statements of the related Mortgagor, and with such other information
as may be required therein.
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48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for delinquent
monthly payments no longer than fifteen (15) days from the applicable Due Date
or five (5) days from notice to the related Mortgagor of the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor impaired property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under such
policy copies of all environmental reports in the Seller's possession related to
such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken place
on the part of the Seller or any affiliated originator in connection with the
origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect to
whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or the
Mortgagor or in any loan made on the security thereof, and whose compensation is
not affected by the approval or disapproval of the Mortgage Loan; the appraisal,
or a letter from the appraiser, states that such appraisal satisfies the
requirements of the "Uniform Standards of Professional Appraisal Practice" as
adopted by the Appraisal Standards Board of the Appraisal Foundation, all as in
effect on the date the Mortgage Loan was originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
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ANNEX A (TO SCHEDULE I)
EXCEPTIONS TO THE REPRESENTATIONS AND WARRANTIES
REP. 4 LIEN; VALID ASSIGNMENT
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with regard to
the Mortgaged Property located in Warren, Ohio, the Mortgaged Property is
encumbered by two oil and gas leases that have been partially released. Surface
rights have been released but subsurface oil and gas rights have not. A mineral
rights endorsement to the lender's title insurance policy was obtained by the
lender.
With regard to the Mortgaged Property located in Grapevine, Texas, the
deed of the Mortgaged Property to the Mortgagor contains certain deed
restrictions, including a repurchase option and a right of first refusal with
regard to such Mortgaged Property.
Repurchase Option - The prior owner of the Mortgaged Property retained
a repurchase option which may be exercised upon the occurrence of certain
events, including any violation by the Mortgagor of certain deed restrictions
(including use restrictions), the failure of the Mortgagor to timely commence
and complete construction of the improvements on the Mortgaged Property, or any
discontinuation of operation of the improvements on the Mortgaged Property for
any period in excess of 30 days (or 180 days in the case of certain "excused
closures", which includes closures for substantial alterations or renovations,
or for periods following casualties during which the Mortgaged Property cannot
be opened and operated practicably). Upon any such repurchase, the repurchase
price shall be the sum of (a) the purchase price paid by the Mortgagor to the
prior owner for the Mortgaged Property (less certain costs and expenses paid or
incurred by the prior owner in connection with such sale), plus (b) the
remaining unamortized hard costs of the improvements constructed at the
Mortgaged Property up to the date of such repurchase (as amortized based on a
straight-line method of depreciation over a recovery period equal to the shorter
of (x) the useful life of the subject improvements calculated under GAAP, or (y)
25 years). The occurrence of any event which would enable the exercise of such
repurchase option constitutes an event of default under the Mortgage Loan
documents.
Right of First Refusal - The prior owner of the Mortgaged Property has
a right of first refusal over any bond-fide offer from an unrelated third-party
relating to the sale, transfer, lease or other conveyance of the Mortgaged
Property. The right of first refusal, however, specifically does not apply to
any foreclosure of a bona-fide mortgage loan made by a bank, insurance company
or other institutional lender.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch:
Right of First Offer: Renaissance Senior Living Management, Inc., the property
manager, has a right of first offer to purchase the property. In the Manager's
Consent and Subordination of Management Agreement, the manager waived its right
of first offer as it relates to any
foreclosure or deed in lieu of foreclosure or any transfer of the property that
occurs after any foreclosure or deed in lieu of foreclosure.
Litigation: In connection with the origination of the loan, the
borrower disclosed a lawsuit with respect to the Property captioned Asset
Capital Group, L.L.C., et al. v. Acacia Place, L.L.C., et al. and IFR Realty
Group, L.L.C. v. Asset Capital Group, L.L.C., et al. (Superior Court of the
State of Arizona Case No. CV2004-000015).
REP. 6 MORTGAGE STATUS; WAIVERS AND MODIFICATIONS
With respect to Loan No. 6, HSA Industrial Portfolio I, dated as of
June 23, 2005 and effective as of June 8, 2005, the Seller and Borrower executed
a First Amendment to Loan Documents.
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA, dated as of April 25, 2005, the Seller and the
Mortgagors executed a First Amendment to Loan Documents. On June 20, 2005, the
Seller and the Mortgagors executed a Second Amendment to Loan Documents.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch, dated as of April,
2005, the Seller and Borrower executed a First Amendment to Loan Documents. On
June 23, 2005, the Seller and Borrower executed a Second Amendment to Loan
Documents.
With respect to Loan No. 94, Auburn Business Center, dated as of May 2005, the
Seller and Borrower executed a First Amendment to the Loan Documents.
With respect to various Countrywide Loans, the payment dates have been amended
to the 8th day of the month.
REP. 7 CONDITION OF PROPERTY; CONDEMNATION
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with regard to
the Mortgaged Property located in Grapevine, Texas, a storage shed located on
the Mortgaged Property extends approximately 3.5 feet over the applicable
building setback line.
REP. 8 TITLE INSURANCE
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, please see Rep.
4.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch, Renaissance
Senior Living Management, Inc., the property manager, has a right of first offer
to purchase the property. In the Manager's Consent and Subordination of
Management Agreement, the manager waived its right of first offer as it relates
to any foreclosure or deed in lieu of foreclosure or any transfer of the
property that occurs after any foreclosure or deed in lieu of foreclosure.
Litigation: In connection with the origination of the loan, the borrower
disclosed a lawsuit with respect to the Property captioned Asset Capital Group,
L.L.C., et al. v. Acacia Place, L.L.C., et
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al. and IFR Realty Group, L.L.C. v. Asset Capital Group, L.L.C., et al.
(Superior Court of the State of Arizona Case No. CV2004-000015), which could
have such affect.
REP. 10 MORTGAGE PROVISIONS
With respect to Loan No. 6, HSA Industrial Portfolio I, for so long as
the Terrorism Risk Insurance Act of 2002 ("TRIA") is in effect (including any
extensions), the lender shall accept terrorism insurance which covers against
"covered acts" as defined by TRIA.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center, the
Mortgagor shall maintain terrorism insurance provided such coverage is generally
available at commercially reasonable rates as determined by Lender.
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, The Mortgagors
are obligated to carry comprehensive general liability insurance, including
contractual injury, bodily injury, broad form death and property damage
liability, "dramshop" or other liquor liability coverage if alcoholic beverages
are sold from or may be consumed at the Mortgaged Properties, and umbrella
liability insurance against any and all claims, including all legal liability to
the extent insurable imposed upon the Mortgagors and all court costs and
attorneys' fees and expenses, arising out of or connected with the possession,
use, leasing, operation, maintenance or condition of the Mortgaged Properties,
as are customarily maintained in businesses such as those operated by the
Mortgagors.
Mortgagors' insurance policies in place upon origination of the
Mortgage Loan are deemed to comply with the requirements of the Mortgage Loan
documents until the expiration of the then-current term of such insurance
policies.
For so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is in
effect (including any extensions), the lender shall accept terrorism insurance
which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, with regard to
the Mortgaged Properties which consist of the related Mortgagor's underlying fee
simple interest in the Mortgaged Property (subject to a Ground Lease), the
Mortgagor is not required to carry insurance as provided for in the Mortgage
Loan documents to the extent that the ground tenant under such Ground Lease
carries such insurance. The proceeds of any insurance policies carried by the
ground tenant under such Ground Lease must be either (a) applied to the
restoration or repair of the relevant Mortgaged Property or (b) applied toward
repayment (i) first, of the Xxxxxxxxxx Portfolio Pool B Mortgage Loan, and (ii)
second, of the Mortgage Loan, to the extent of any excess proceeds.
The Mortgagors are obligated to carry comprehensive general liability
insurance, including contractual injury, bodily injury, broad form death and
property damage liability, "dramshop" or other liquor liability coverage if
alcoholic beverages are sold from or may be consumed at the Mortgaged
Properties, and umbrella liability insurance against any and all claims,
including all legal liability to the extent insurable imposed upon the
Mortgagors and all court costs and attorneys' fees and expenses, arising out of
or connected with the possession, use,
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leasing, operation, maintenance or condition of the Mortgaged Properties, as are
customarily maintained in businesses such as those operated by the Mortgagors.
Mortgagors' insurance policies in place upon origination of the
Mortgage Loan are deemed to comply with the requirements of the Mortgage Loan
documents until the expiration of the then-current term of such insurance
policies.
For so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is in
effect (including any extensions), the lender shall accept terrorism insurance
which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 29 and 92, Tuscany at XxXxxxxxx Ranch and
Bridgeworks Industrial Center, for so long as the Terrorism Risk Insurance Act
of 2002 ("TRIA") is in effect (including any extensions), the lender shall
accept terrorism insurance which covers against "covered acts" as defined by
TRIA.
In addition to the above exceptions, the other Countrywide loans may
contain similar or other limitations with respect to terrorism insurance, such
as limits relating to a requirement that terrorism insurance only be obtained so
long as it is commercially available, limits relating to the amount of premium
that is required to be paid for terrorism insurance and other limitations.
REP. 12 ENVIRONMENTAL CONDITIONS
With respect to all of Countrywide's Loans, in the Mortgage Loan
documents, the Mortgagor represents, warrants and covenants, as to itself and
the Mortgaged Property: (a) other than as disclosed to the lender in the
environmental report obtained in connection with the origination of the Mortgage
Loan, there are no hazardous substances or underground storage tanks in, on, or
under the Mortgaged Property, except those that are both (i) in compliance with
all environmental laws and with permits issued pursuant thereto and (ii) which
do not require remediation; (b) there are no past, present or threatened
releases of hazardous substances in, on, under, from or affecting the Mortgaged
Property which have not been fully remediated in accordance with environmental
laws; (c) there is no release or threat of any release of hazardous substances
which has or is migrating to the Mortgaged Property; (d) there is no past or
present non-compliance with environmental laws, or with permits issued pursuant
thereto, in connection with the Mortgaged Property which has not been fully
remediated in accordance with environmental laws; (e) the Mortgagor does not
know of, and has not received, any written or oral notice or other communication
from any person (including, without limitation, any governmental authority)
relating to hazardous substances or the remediation thereof, of possible
liability of any person pursuant to any environmental law, other environmental
conditions in connection with the Mortgaged Property, or any actual or potential
administrative or judicial proceedings in connection with any of the foregoing;
and (f) the Mortgagor has truthfully and fully provided to the lender, in
writing, any and all information relating to conditions in, on, under or from
the Mortgaged Property that is known to the Mortgagor and that is contained in
files and records of the Mortgagor, including, without limitation, any reports
relating to hazardous substances in, on, under or from the Mortgaged Property
and/or to the environmental condition of the Mortgaged Property.
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The Mortgagors and the environmental indemnitor are not obligated
under the Mortgage Loan documents to indemnify the lender or any other
indemnified party (a) for any losses which arise out of the fraud or willful
misconduct of the lender or any other indemnified party, or (b) to the extent
the fact, circumstances or event relating to any affected Mortgaged Property
first arises or accrues from or after any foreclosure by the lender or any other
indemnified party, or acceptance of a deed in lieu thereof, or lender or any
other indemnified party or a designee thereof takes physical possession of such
Mortgaged Property pursuant to any rights or remedies provided for in the
Mortgage Loan documents.
With respect to Loan No. 6, HSA Industrial Portfolio I, in the
Mortgage Loan documents, Mortgagor represents, warrants and covenants, as to
itself and the Mortgaged Property: other than as disclosed to the lender in the
environmental report obtained in connection with the origination of the Mortgage
Loan, to Mortgagor's knowledge (a) there are no hazardous substances or
underground storage tanks in, on, or under the Mortgaged Property, except those
that are both (i) in compliance with all environmental laws and with permits
issued pursuant thereto and (ii) which do not require remediation; (b) there are
no past, present or threatened releases of hazardous substances in, on, under,
from or affecting the Mortgaged Property which have not been fully remediated in
accordance with environmental laws if such remediation is required by
environmental law; (c) there is no release or threat of any release of hazardous
substances which has or is migrating to the Mortgaged Property; (d) there is no
past or present non-compliance with environmental laws, or with permits issued
pursuant thereto, in connection with the Mortgaged Property which has not been
fully remediated in accordance with environmental laws; (e) the Mortgagor does
not know of, and has not received, any written notice or other written
communication from any person (including, without limitation, any governmental
authority) relating to hazardous substances or the remediation thereof, of
possible liability of any person pursuant to any environmental law, other
environmental conditions in connection with the Mortgaged Property, or any
actual or potential administrative or judicial proceedings in connection with
any of the foregoing; and (f) the Mortgagor has truthfully and fully provided to
the lender, in writing, any and all information relating to conditions in, on,
under or from the Mortgaged Property that is known to the Mortgagor and that is
contained in files and records of the Mortgagor, including, without limitation,
any reports relating to hazardous substances in, on, under or from the Mortgaged
Property and/or to the environmental condition of the Mortgaged Property.
REP. 14 INSURANCE
With respect to Loan Xx. 0 xxx 00, XXX Xxxxxxxx Xxxx I and Dulles
Creek, for so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is in
effect (including any extensions), the mortgagee shall accept terrorism
insurance which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 6, HSA Industrial Portfolio I, please see
Rep. 10.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx
shall maintain "all risks" insurance in an amount equal to the greater of (i)
$30,600,000 or (ii) the full insurable value of the Improvements, Equipment and
Inventory located on the Property.
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, please see
Rep.10
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, please see
Rep.10
With respect to Loan Xx. 00, XXX--Xxxxxxxxx, Xxxxxx is responsible for
providing the insurance; however, the loan documents allow Lender to require
Borrower to provide any insurance coverages required by the loan documents that
are not provided by the tenant pursuant to its lease at the property.
With respect to Loan No. 92, Bridgeworks Industrial Center, please see
Rep.10
In addition to the above exceptions, the other Countrywide loans may
contain similar or other limitations with respect to terrorism insurance, such
as limits relating to a requirement that terrorism insurance only be obtained so
long as it is commercially available, limits relating to the amount of premium
that is required to be paid for terrorism insurance and other limitations.
REP. 17 LOCAL LAW COMPLIANCE
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, according to
the zoning consultant report obtained in connection with the origination of the
Mortgage Loan, with regard to the Mortgaged Property located in Independence,
Missouri (Residence Inn), the Mortgaged Property is deficient 3 parking spaces
under the applicable zoning restrictions. The Mortgagor has covenanted in the
Mortgage Loan documents to notify the lender promptly of any written notice or
order that the Mortgagor receives from any governmental authority relating to
Mortgagor's failure to comply with such applicable legal requirements relating
to the Mortgaged Property (including, without limitation, any such notice
regarding shortages in parking spaces under applicable zoning ordinances) and
promptly take any and all actions necessary to bring its operations at the
Mortgaged Property into compliance therewith (and shall fully comply with the
requirements of such legal requirements that at any time are applicable to its
operations at the Mortgaged Property); provided, however, that the Mortgagor, at
its expense may, after prior notice to the lender, contest by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the validity or application, in whole or in part, of any such
applicable legal requirements as long as certain conditions set forth in the
Mortgage Loan documents are satisfied with respect to such contest at all times.
The law and ordinance policy maintained by the Mortgagors has an
aggregate liability cap of $20,000,000, and such law and ordinance policy does
not cover losses sustained as a result of terrorist acts.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, According to
the zoning consultant reports obtained in connection with the origination of the
Mortgage Loan, (a) with regard to the Mortgaged Property located in Roseville,
Minnesota, the Mortgaged Property is deficient 1 parking space under the
applicable zoning restrictions; (b) with regard to the Mortgaged Property
located in Racine, Wisconsin, the Mortgaged Property is deficient 2 parking
spaces under the applicable zoning restrictions; (c) with regard to the
Mortgaged Property located in Independence, Missouri (Residence Inn), which is
ground leased by the applicable Mortgagor to one of the borrowers under the
Xxxxxxxxxx Portfolio Loan B, the Mortgaged
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Property is deficient 3 parking spaces under the applicable zoning restrictions;
(d) with regard to the Mortgaged Property located in Missoula, Montana, the
number of parking spaces at the Mortgaged Property is legally conforming under
the applicable zoning restrictions so long as no more than 4 employees are on
duty at any time (with 1 additional parking space being required for each 4
additional employees on duty at any time, in excess of 4); and (e) with regard
to the Mortgaged Property located in Cheyenne, Wyoming, the number of parking
spaces at the Mortgaged Property is legally conforming under the applicable
zoning restrictions so long as no more than 8 employees are on duty at any time
(with 1 additional parking space being required for each 2 additional employees
on duty at any time, in excess of 8).
The Mortgagors have covenanted in the Mortgage Loan documents to
notify the lender promptly of any written notice or order that the Mortgagor
receives from any governmental authority relating to Mortgagor's failure to
comply with such applicable legal requirements relating to the Mortgaged
Property (including, without limitation, any such notice regarding shortages in
parking spaces under applicable zoning ordinances) and promptly take any and all
actions necessary to bring its operations at the Mortgaged Property into
compliance therewith (and shall fully comply with the requirements of such legal
requirements that at any time are applicable to its operations at the Mortgaged
Property); provided, however, that the Mortgagor, at its expense may, after
prior notice to the lender, contest by appropriate legal, administrative or
other proceedings conducted in good faith and with due diligence, the validity
or application, in whole or in part, of any such applicable legal requirements
as long as certain conditions set forth in the Mortgage Loan documents are
satisfied with respect to such contest at all times.
The law and ordinance policy maintained by the Mortgagors has an
aggregate liability cap of $20,000,000, and such law and ordinance policy does
not cover losses sustained as a result of terrorist acts.
REP. 18 LEASEHOLD ESTATE ONLY
(II) With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, the
underlying fee simple interests in three of the Mortgaged Properties are
encumbered by the Xxxxxxxxxx Portfolio IIA Mortgage Loan; however, neither the
liens of the Mortgage Loan nor the Xxxxxxxxxx Portfolio IIA Mortgage Loan, are
subordinate to the liens of the other loan.
(VI) With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with
regard to any monetary default by a Mortgagor under any Ground Lease, the lender
shall have an additional sixty days following the expiration of the Mortgagor's
cure period under the Ground Lease in order to cure such monetary default.
(VII) With respect to Loan No. 56, Xxxx & Buster's, the related ground
lease has an original term that expires prior to a date that is the 5th
anniversary of the Stated Maturity Date and the related ground lease including
all extensions extend to a date that is 3 months less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan.
REP. 22 LEGAL PROCEEDINGS
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, a class action lawsuit
has been filed against the sponsor of the Mortgagors and certain related parties
concerning the formation of the Xxxxxxxxxx Motels, Inc. Employee Stock Option
Plan (the "ESOP"), which is the majority owner of Xxxxxxxxxx Motels, Inc. (the
indirect owner of the underlying fee interests in each of the Mortgaged
Properties). None of the Mortgagors are named as defendants in such lawsuit.
A lawsuit has been filed against the sponsor of the Mortgagors and certain
related parties concerning breach of a real estate development contract. The
parties thereafter entered into a settlement agreement, which the plaintiff is
now challenging. None of the Mortgagors are named as defendants in such lawsuit,
however, the disputed settlement agreement involves, among other things, a six
percent (6%) ownership interest in the Mortgaged Property located in Rancho
Cordova, California.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, a class action lawsuit
has been filed against the sponsor of the Mortgagors and certain related parties
concerning the formation of the Xxxxxxxxxx Motels, Inc. Employee Stock Option
Plan (the "ESOP"), which is the majority owner of Xxxxxxxxxx Motels, Inc. (the
indirect owner of each of the Mortgagors). None of the Mortgagors are named as
defendants in such lawsuit.
A lawsuit has been filed against the sponsor of the Mortgagors and certain
related parties concerning breach of a real estate development contract. The
parties thereafter entered into a settlement agreement, which the plaintiff is
now challenging. The settlement does not involve any of the Mortgagors or the
Mortgaged Properties.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx, in connection with the
origination of the loan, the borrower disclosed a lawsuit with respect to the
Property captioned Asset Capital Group, L.L.C., et al. v. Acacia Place, L.L.C.,
et al. and IFR Realty Group, L.L.C. v. Asset Capital Group, L.L.C., et al.
(Superior Court of the State of Arizona Case No. CV2004-000015), which could
have such affect.
REP. 23 OTHER MORTGAGE LIENS
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center, the loan
documents do not require Mortgagor to pay all reasonable costs and expenses
related to any required consent to an encumbrance.
With respect to existing and future mezzanine debt see the exceptions
set forth to rep. 34.
REP. 26 LICENSES AND PERMITS
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA , with regard to certain of the Mortgaged Properties,
the liquor license relating to such Mortgaged Property, if any, may be held by
an affiliate of the applicable Mortgagor.
With respect to Loan No. 92, Bridgeworks Industrial Center, according
to the zoning consultant report obtained in connection with the origination of
the Mortgage Loan, (a)
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no certificate of occupancy was issued for the Mortgaged Property because a
portion of the building is owned by the City of Allentown, and the City will not
issue a certificate of occupancy to itself, and (b) the absence of a certificate
of occupancy on file with the City is not considered to be a violation of zoning
regulations and will not lead to any enforcement action.
REP. 28 RELEASE OF MORTGAGED PROPERTIES
With respect to Loan No. 6, HSA Industrial Portfolio I, provided that no Event
of Default has occurred and is continuing under any of the Loan Documents, at
any time prior to the Defeasance Start Date, Borrower, in connection with a bona
fide sale of an Individual Property to an unaffiliated third party, may obtain
the release of such Individual Property (a "Partial Release") from the lien of
the applicable Mortgage (and other Loan Documents ) and the release of such
Borrower's ongoing obligations under the Note and other Loan Documents with
respect to such Individual Property (other than those expressly stated to
survive), so long as all of the following conditions shall have been satisfied:
a. Borrower shall have provided Lender with no less than thirty (30) days, but
no more than ninety (90) days, prior written notice of its request to
obtain a release of the applicable Property;
b. Lender shall have received a prepayment of the Loan in an amount equal to
the greater of (a) 85% of the gross sale price (as determined by Lender in
Lender's reasonable discretion) of the Property sold; (b) 120% of the
Allocated Loan Amount for the Property sold; or (c) the amount which, after
giving effect to such prepayment would result in a Debt Service Coverage
Ratio of at least 1.25, which prepayment shall be accompanied by (i) all
accrued and unpaid interest on the Principal Indebtedness as of the date of
such prepayment, (ii) if such prepayment is not made on a Payment Date, the
interest which would have accrued thereon to the next monthly Payment Date
with respect to the amount prepaid, and (iii) the Yield Maintenance
Premium;
c. Borrower shall not be permitted to obtain a Partial Release if the
aggregate amount of principal paid pursuant to the two Partial Releases
permitted hereunder would exceed $25,000,000;
d. Borrower shall not be entitled to more than two Partial Releases during the
term of the Loan. In connection with any Partial Release pursuant to this
Section, if Borrower elects to obtain a release of either of the Westbelt
Properties, Borrower must simultaneously make a prepayment and obtain a
release of the other Westbelt Property, both in accordance with this
Section, provided however that such Partial Release of the Westbelt
Properties shall be considered one release for the purpose of determining
the total number of Partial Releases permitted;
e. Mezzanine Lender shall have received a prepayment of the Mezzanine Loan
from Mezzanine Borrower simultaneously with the prepayment described in
Section 2.7(b), in such amount and in such manner in accordance with
Section 2.4(d) of the Mezzanine Loan Agreement;
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f. Borrower shall have submitted to Lender, not less than ten (10) Business
Days prior to the date of such Partial Release, all necessary and
appropriate documentation concerning the release of the lien of the
applicable Mortgage (and other Loan Documents) for such Property, for
execution by Lender. Such release documentation shall be in a form
appropriate in the State in which such Property is located and shall
contain standard provisions, if any, protecting the rights of Lender. In
addition, Borrower shall provide any and all other documentation Lender
customarily requires in the State where the applicable Property is located,
to be delivered by Borrower in connection with such Partial Release,
together with an officer's certificate certifying that such documentation
is in compliance with all Legal Requirements in all material respects.
g. Lender shall have received evidence reasonably satisfactory to Lender that
the applicable Property to be released shall be conveyed to a Person other
than any Borrower or any Affiliate of any of the Borrowers; and
h. Lender shall receive reimbursement in full (no later than the closing date
of such Partial Release transaction) of all of Lender's fees, costs and
expenses, including without limitation, reasonable legal counsel fees and
disbursements incurred in connection with the Partial Release, and the
review and approval of all documents and information required to be
delivered in connection therewith.
REP. 34 DUE-ON-SALE
With respect to Loan No. 6, HSA Industrial Portfolio I, not more than twice, all
of the Mortgaged Properties may be sold to another party who shall assume the
Loan (the "Transferee Borrower"), provided that prior to such sale (a) Mortgagor
shall pay to Mortgagee a transfer fee in the amount of one-quarter of one
percent (.25%) of the loan amount, plus any reasonable costs or fees incurred by
Mortgagee in connection with such sale and assumption, (b) after a secondary
market transaction, Mortgagor shall deliver (or cause to be delivered) to
Mortgagee a rating agency confirmation with respect to such transfer, (c) the
identity, experience, financial condition, creditworthiness, single purpose
nature and bankruptcy remoteness of the Transferee Borrower and the replacement
guarantors and indemnitors shall be reasonably satisfactory to Mortgagee, (d)
Mortgagor, Transferee Borrower, guarantor and the replacement guarantors and
indemnitors shall execute and deliver any and all documentation as may be
reasonably required by Mortgagee or required by the rating agencies, as the case
may be, in form and substance reasonably satisfactory to Mortgagee or
satisfactory to the rating agencies, as the case may be, in Mortgagee's
reasonable discretion or the rating agencies' discretion, as applicable, (e)
counsel to Transferee Borrower and the replacement guarantors and indemnitors
shall deliver to Mortgagee and the rating agencies opinion letters relating to
such transfer (including, without limitation, tax, bankruptcy and REMIC
opinions) in form and substance reasonably satisfactory to Mortgagee and
satisfactory to the rating agencies in Mortgagee's reasonable discretion and the
rating agencies' discretion, (f) Mortgagor shall deliver (or cause to be
delivered) to Mortgagee, an endorsement to the title insurance policy relating
to the change in the identity of the vestee and the execution and delivery of
the transfer documentation in form and substance reasonably acceptable to
Mortgagee and (g) Mortgagor pays all reasonable expenses incurred by Mortgagee
in connection with such transfer, including, without limitation, Mortgagee's
reasonable attorneys fees and expenses, all recording fees, and all fees payable
to the title company for the delivery to
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Mortgagee of the endorsement referred to in clause (f) above and (h) the
mezzanine loan shall be paid in full in accordance with the terms of the
mezzanine loan documents. In connection with the sale of all of the Mortgaged
Properties and the assumption of the Loan, subject to Section 4.42, Section
12.1, and Section 12.20, as those sections relate to obligations which accrued
prior to the date of such sale and assumption, Mortgagee shall release Mortgagor
and guarantor from their obligations under the Mortgage Agreement Loan Documents
that accrue after such assumption, provided that all of the requirements of this
section have been met and provided further that nothing in this section shall
constitute a release of any liability or obligation relating to any
environmental matters arising under Article 9 of the Mortgage Loan Agreement;
Not more than once, there may be a transfer, simultaneously, by three of the
individual borrowers of all of the interests in all of the Mortgaged Properties
held by each of such three individual borrowers to the remaining individual
borrower who shall assume all of the obligations of the other three individual
borrowers under the Mortgage Loan Documents, provided that (a) Mortgagor shall
pay to Mortgagee a processing fee in the amount of $10,000 plus any reasonable
costs or fees incurred by Mortgagee in connection with such sale and assumption;
(b) the mezzanine loan shall be simultaneously paid in full in accordance with
the mezzanine loan documents or the mezzanine loan shall be simultaneously
assumed in accordance with paragraph (iv) of the definition of permitted
transfers in the mezzanine loan agreement; (c) Mortgagor shall execute and
deliver any and all documentation as may be reasonably required by Mortgagee in
form and substance reasonably satisfactory to Mortgagee in Mortgagee's
reasonable discretion to evidence the assumption by the remaining individual
borrower of all obligations of the other individual borrowers under the Loan;
(d) counsel to Mortgagor shall deliver to Mortgagee opinion letters relating to
such transfer (including, without limitation, tax, bankruptcy and REMIC opinions
(if necessary)) in form and substance reasonably satisfactory to Mortgagee in
Mortgagee's reasonable discretion, (e) Mortgagor shall deliver (or cause to be
delivered) to Mortgagee, an endorsement to the title insurance policy relating
to the change in the identity of the vestee and the execution and delivery of
the transfer documentation in form and substance reasonably acceptable to
Mortgagee and (f) Mortgagor shall pay all reasonable expenses incurred by
Mortgagee in connection with such transfer, including, without limitation,
Mortgagee's reasonable attorneys fees and expenses, all recording fees, and all
fees payable to the title company for the delivery to Mortgagee of the
endorsement referred to in clause (e) above.
The mortgage lender made a mezzanine loan to the owner of one hundred
percent (100%) of the equity interests in the Mortgage Borrower, which loan is
secured by a pledge of one hundred percent (100%) of such equity interests. The
initial pledge of such equity interests is a permitted transfer under the
mortgage loan. In addition, a transfer of such equity interests to the mezzanine
lender in connection with the exercise of the mezzanine lender's rights and
remedies under the mezzanine loan document is permitted without the prior
written consent of the mortgage lender provided that such transfer is made in
accordance with the terms of the intercreditor agreement.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center, provisions
regarding transfers by Borrowers attached hereto as Exhibit A.
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, the following
occurrences are also deemed to be permitted transfers under the Mortgage Loan
documents, which shall not require the consent of the lender: (a) any change in
the trustee of any estate planning trust which holds a direct or indirect
interest in any Mortgagor so long as such trustee is a financial institution;
and (b) any equity conversion transaction contemplated in the requisite
subordination agreement relating to certain unsecured indebtedness of either
H.I. Management of Rancho Xxxxxxx, Inc. or F.I. Management of Niles, Inc., in
favor of certain direct or indirect owners of either such Mortgagor, which
unsecured indebtedness may be in an aggregate amount not to exceed $3,500,000,
and may be incurred by such Mortgagors subject to certain conditions set forth
in the Mortgage Loan documents. In addition, the Mortgage Loan documents permit
the incurrence of future mezzanine debt, subject to the satisfaction of certain
conditions set forth in the Mortgage Loan documents.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, the following
occurrences are also deemed to be permitted transfers under the Mortgage Loan
documents, which shall not require the consent of the lender: (a) any change in
the trustee of any estate planning trust which holds a direct or indirect
interest in any Mortgagor so long as such trustee is a financial institution;
and (b) any change in the "Trustee" or the "Committee" (as defined in the ESOP)
of the Xxxxxxxxxx Motels, Inc. Employee Stock Option Plan and Trust, as amended
and restated, effective as of January 1, 2002 (the "ESOP"); provided that no
such change shall, without the prior written consent of the lender, result,
directly or indirectly, in a change in the identity of a majority of the
following five (5) key management individuals holding senior executive
management positions of Xxxxxxxxxx Motels, Inc.: Xxxx Xxxxxxxxxx, Xxxxxxx
Croves, Xxxxx Xxxx, Xxxx Xxxxxxxxxx, and Xxxx Xxxxxxx; provided further that
upon the occurrence at any time during the term of the Mortgage Loan of any
review and consent by the lender of any such changes in key personnel, no
further consent will be required by the lender as to such management group,
except to the extent of any change in the identity of a majority of the five (5)
key management individuals then holding such senior executive management
positions of Xxxxxxxxxx Motels, Inc. In addition, the Mortgage Loan documents
permit the incurrence of future mezzanine debt, subject to the satisfaction of
certain conditions set forth in the Mortgage Loan documents.
With respect to Loan No. 21, Holy Cross Medical Center, transfers of
membership, partnership or shareholder interests in Borrower, by a current
member, partner or shareholder, as applicable, to an immediate family member
(i.e., parents, spouses, siblings, children or grandchildren) of such member,
partner or shareholder or to a trust for the benefit of an immediate family
member of such member, partner or stockholder;
Transfers by devise or descent or by operation of law upon the death
of a member, a partner or stockholder of Borrower, Guarantor or any member,
partner or stockholder thereof; and
Transfers, sales or pledges of G&L Realty Corp.'s stock by operation
of law or otherwise or all or substantially all of its assets; provided same (a)
does not result in a Material Adverse Effect, (b) is reasonably approved by
Lender and (c) Borrower reimburses Lender for all reasonable expenses (not
including a transfer fee) incurred by Lender in connection with such transfer.
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With respect to all of Countrywide's loans in addition to the above
stated exceptions, the Property may be transferred without the written consent
of the Lender in sales of the entire Property to another party (the "Transferee
Borrower"), provided that prior to such sale the following conditions, among
others, are met: (a) Borrower may be required to pay to lender a transfer fee,
(b) the identity, experience, financial condition, creditworthiness, single
purpose nature and bankruptcy remoteness of the Transferee Borrower and the
replacement guarantors and indemnitors shall be reasonably satisfactory to
Lender, (c) Borrower, Transferee Borrower, Guarantor and the replacement
guarantors and indemnitors shall execute and deliver any and all documentation
as may be reasonably required by Lender, in form and substance reasonably
satisfactory to Lender in Lender's reasonable discretion (including, without
limitation, assumption documents), (d) counsel to Transferee Borrower and the
replacement guarantors and indemnitors shall deliver to Lender opinion letters
relating to such transfer (including, without limitation, tax, bankruptcy and
REMIC opinions) in form and substance reasonably satisfactory to Lender in
Lender's reasonable discretion, and (e) Borrower pays all reasonable expenses
incurred by Lender in connection with such transfer, including, without
limitation, Lender's reasonable attorneys fees and expenses, all recording fees,
and all fees payable to the Title Company for the delivery to Lender of the
endorsement referred to in clause (e) above.
The following Countrywide loans have additional debt:
With respect to Loan No. 4, ACP Woodland Park I, in order to partially
fund the equity contribution of the indirect owners of 37.5% of the managing
member of the parent of the borrower, certain entities owned by Baupost Group
LLC, a group that indirectly owns 90% of the parent of the borrower, have
provided a revolving line of credit, which was drawn upon in the amount of
$2,000,000. This line of credit is secured by a pledge of such owners' equity in
the managing member of the parent of the borrower and is paid solely out of the
excess cash flow.
With respect to Loan No. 11 and Loan No.16, Xxxxxxxxxx Portfolio IIB
and Xxxxxxxxxx Portfolio IIA, two of the borrowers are permitted to incur up to
$3,500,000 of unsecured debt from their affiliates. As of the date of
origination of the Xxxxxxxxxx IIB Loan, one of the borrowers incurred unsecured
debt from its affiliates, which is evidenced by two promissory notes in the
amount of $244,163.25 and $11,488.60, respectively.
With respect to Loan No. 28, Dulles Creek, in order to partially fund
the equity contribution of the indirect owners of 100% of the managing member of
the parent of the borrower, Baynorth Realty Fund VI Limited Partnership, the
entity that owns 90% of the parent of the borrower, has provided a revolving
line of credit, which was drawn upon in the amount of $1,500,000. This line of
credit is secured by a pledge of such owners' equity in the managing member of
the parent of the borrower and is paid solely out of excess cash flow.
The following Countrywide loans permit mezzanine debt in the future,
subject to satisfaction of certain conditions set forth in the related mortgage
loan document:
(a) Tuscany at XxXxxxxxx Ranch, (b) Euless Town Center, (c) The
Corners Apartments, (d) Boulder Palms Senior Apartments, (e) ACP Woodland Park
I, (f) 24-Hour Fitness-Henderson, NV, (g) 24-Hour Fitness-Monrovia, (h) Xxxx &
Busters- San Diego, (i)
-00-
Xxxxxxx Xxxxx, (x) HSA Industrial Portfolio I, (k) Xxxxxxxxxx Portfolio IIA and
(l) Xxxxxxxxxx Portfolio IIB.
The following Countrywide loans have existing mezzanine debt:
With respect to Loan No. 6, HSA Industrial Portfolio I, at the time of
the origination of the, the lender also made a $4,200,000 mezzanine loan to the
equity owners of the related borrowers. The mezzanine loan is secured by a
pledge of 100% of the equity interests in the related borrower. In addition, at
any time after payment in full of the mezzanine loan, the mezzanine borrower may
obtain a new mezzanine loan, secured by a pledge of the mezzanine borrower's
direct equity interest in the borrowers, provided that the mezzanine borrower
satisfies certain conditions.
With respect to Loan No. 94, Auburn Business Center, the related
borrower is permitted, subject to the satisfaction of certain conditions
provided for in the mortgage loan documents, to transfer its interest to
tenants-in-common.
REP. 35 SINGLE PURPOSE ENTITY
With respect to Loan No. 6, HSA Industrial Portfolio I, each of the
ten Mortgaged Properties is owned jointly by each of the four Mortgagors as
tenants in common. The Mortgage Borrowers commingle funds for the purpose of
paying their collective obligations.
With respect to Loan No. 27, First National Bank of Arizona
Headquarters, the organizational documents of Mortgagor do not contain single
purpose entity provisions, but such provisions are contained in the Loan
Agreement.
With respect to Loan No. 52 and 59, Arcadia Del Sol Apartments and 000
Xxxxxxxxx Xxxxxx, the organizational documents of the borrower do not contain
single purpose entity provisions, however, the Mortgagor covenants in the loan
documents that it is and will remain a Single-Purpose Entity.
With respect to Loan Xx. 00 xxx 00, Xxxxxx Xxxxxx Xxxxxx xxx Xxxxx
Xxxxxxx Center, the organizational documents of the borrower do not contain
single purpose entity provisions.
With respect to Loan No. 77, Center Medical Building, SPE covenants
are included in loan documents, not organizational documents. It is not a single
purpose entity because it owns a parking garage that is not part of
Countrywide's collateral.
With respect to Loan No. 92, Bridgeworks Industrial Center, the
borrower is a not-for-profit redevelopment organization, not a single purpose
entity.
With respect to Loan Xx. 00, Xxxxxx Xxxxxx Xxxx Homes, Borrower's
organizational documents do not contain SPE provisions. The Borrower is bound by
the SPE covenants in the Loan Documents.
REP. 43 RECOURSE
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With respect to Loan Xx. 0 xxx 00, XXX Xxxxxxxx Xxxx I and Dulles
Creek, the related Mortgage Loan documents contain provisions providing recourse
against the related Mortgagor and certain principals of such Mortgagor for
damages, liabilities, expenses or claims sustained in connection with any
intentional act of waste of the related Mortgaged Property or any material
portion thereof, or, during the continuance of any event of default, the removal
or disposal of any portion of the Mortgaged Property.
With respect to Loan No. 6, HSA Industrial Portfolio I, in addition to
certain other recourse carve-out liability, the Mortgagor is liable to the
lender for (a) the misapplication or conversion of rents, insurance proceeds or
condemnation proceeds, and (b) the misappropriation of rents collected in
advance.
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA, in addition to certain other recourse carve-out
liability, the Mortgagor and the carve-out guarantor are liable to the lender
for any losses arising out of or in connection with any act of willful waste of
the Mortgaged Property or any portion thereof.
With respect to Loan No. 29 and 92, Tuscany at XxXxxxxxx Ranch and
Bridgeworks Industrial Center, in addition to certain other recourse carve-out
liability, the Mortgagor is liable to the lender for (a) the misapplication or
conversion of rents, insurance proceeds or condemnation proceeds, and (b) the
misappropriation of rents collected in advance.
REP. 45 FEE SIMPLE INTEREST
With respect to Loan No. 6, HSA Industrial Portfolio I, each of the
ten Mortgaged Properties is owned jointly by each of the four Mortgagors as
tenants in common.
REP. 47 OPERATING STATEMENTS
With respect to Loan No. 29, Tuscany at XxXxxxxxx Ranch, Borrower must
furnish lender with quarterly unaudited financial statement in form and
substance acceptable to lender in lender's discretion and include a property
management report which shows property income and expenses and property
operating statistics.
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EXHIBIT A
PERMITTED TRANSFER PROVISIONS
"Permitted Transfers" means, provided that no Event of Default has
occurred and is continuing:
(i) Permitted Encumbrances;
(ii) all transfers of worn out or obsolete furnishings, fixtures or
equipment that are promptly replaced with property of equivalent value and
functionality (unless Borrower reasonably determines such replacement is not
necessary for operation of the Property and would not have a Material Adverse
Effect);
(iii) all Leases which are not Material Leases;
(iv) all Material Leases which have been approved by Lender in
accordance with Section 5.19;
(v) transfers (but not pledges) of Equity Interests in any Borrower
which in the aggregate during the term of the Loan (a) do not exceed forty-nine
percent (49%) of the total direct or indirect legal or beneficial ownership
interests in such Borrower, (b) do not result in any partner's, member's or
other Person's interest in such Borrower exceeding forty-nine percent (49%) of
the total direct or indirect legal or beneficial ownership interests in Borrower
(unless the transferee previously owned more than 49% of the Equity Interests in
such Borrower) and (c) do not cause the transferee to acquire control of such
Borrower;
(vi) any other transfer of any other direct or indirect legal or
beneficial ownership interest in any Borrower, provided that (a) Lender shall
have consented to such transfer (b) after any Secondary Market Transaction, such
Borrower shall deliver (or cause to be delivered) to Lender a Rating Agency
Confirmation with respect to such transfer, (c) such Borrower shall deliver to
Lender and the Rating Agencies opinion letters relating to such transfer
(including, without limitation, tax and bankruptcy opinions) in form and
substance satisfactory to Lender and the Rating Agencies, and (d) such Borrower
pays all reasonable expenses incurred by Lender in connection with such
transfer;
(vii) sales of the entire Property to another party (the "TRANSFEREE
BORROWER"), provided that prior to such sale (a) Borrower shall pay to Lender a
transfer fee in the amount of one percent (1%) of the Principal Indebtedness,
(b) Lender shall consent to such transfer (such consent to not be unreasonably
withheld, conditioned or delayed by Lender), (c) after a Secondary Market
Transaction, Borrower shall deliver (or cause to be delivered) to Lender a
Rating Agency Confirmation with respect to such transfer, (d) the identity,
experience, financial condition, creditworthiness, single purpose nature and
bankruptcy remoteness of the Transferee Borrower and the replacement guarantors
and indemnitors shall be satisfactory to Lender in
Lender's reasonable discretion, (e) Borrower, Transferee Borrower, Guarantor and
the replacement guarantors and indemnitors shall execute and deliver any and all
documentation to effectuate the transfer as may be required by Lender or the
Rating Agencies, in form and substance satisfactory to Lender or the Rating
Agencies in Lender's or the Rating Agencies' discretion, as applicable (which
documents in any event shall provide for: (A) a release of the Borrower (and all
Guarantors) from all liability under the Loan for act or events first occurring
after the effective date of the Transfer; and (B) an estoppel certificate from
Lender in the form referred to in Section 12.22 and containing a statement as to
the Principal Indebtedness owed as of the date of transfer and the amount of all
reserves held by Lender), (f) counsel to Transferee Borrower and the replacement
guarantors and indemnitors shall deliver to Lender and the Rating Agencies
opinion letters relating to such transfer (including, without limitation, tax,
bankruptcy and REMIC opinions) in form and substance satisfactory to Lender and
the Rating Agencies in Lender's and the Rating Agencies' discretion, as
applicable, (g) Borrower shall deliver (or cause to be delivered) to Lender, an
endorsement to the Title Insurance Policy relating to the change in the identity
of the vestee and the execution and delivery of the transfer documentation in
form and substance reasonably acceptable to Lender and (h) Borrower pays all
reasonable expenses incurred by Lender in connection with such transfer,
including, without limitation, Lender's reasonable attorneys fees and expenses,
all recording fees, and all fees payable to the Title Company for the delivery
to Lender of the endorsement referred to in clause (g) above;
(viii) sales by a Borrower (the "TIC TRANSFEROR BORROWER") of its
co-tenancy interest in the Property (the "TIC TRANSFER") to another party (the
"TIC TRANSFEREE BORROWER"), provided that prior to such sale (a) TIC Transferor
Borrower shall pay to Lender a transfer fee in the amount of one percent (1%) of
the Principal Indebtedness multiplied by the TIC Interest of the TIC Transferor
Borrower (but in all events such fee shall not be less than $2,500 or greater
than $10,000, (b) Lender shall consent to such transfer (such consent to not be
unreasonably withheld, conditioned or delayed by Lender), (c) after a Secondary
Market Transaction, TIC Transferor Borrower shall deliver (or cause to be
delivered) to Lender a Rating Agency Confirmation with respect to such transfer,
provided, however, such Rating Agency Confirmation shall not be required for any
TIC Transfer of a TIC Interest of less than five percent (5%), (d) the identity,
experience (with respect to a TIC Transfer by a Sponsor Borrower), financial
condition, creditworthiness, single purpose nature and bankruptcy remoteness of
the TIC Transferee Borrower and the replacement guarantors and indemnitors shall
be satisfactory to Lender in Lender's reasonable discretion, (e) TIC Transferor
Borrower, TIC Transferee Borrower, the Guarantor of TIC Transferor Borrower and
the replacement guarantors and indemnitors shall execute and deliver any and all
documentation to effectuate the transfer as may be required by Lender or the
Rating Agencies, in form and substance satisfactory to Lender or the Rating
Agencies in Lender's or the Rating Agencies' discretion, as applicable (which
documents in any event shall provide for a release of the TIC Transferor
Borrower (and its related Guarantor) from all liability under the Loan for act
or events first occurring after the effective date of the Transfer), including,
without limitation, an assumption by TIC Transferee Borrower of the TIC
Agreement, (f) counsel to TIC Transferee Borrower and the replacement guarantors
and indemnitors shall deliver to Lender and the Rating Agencies, if required by
the magnitude of such transfer, opinion letters relating to such transfer
(including, without limitation, tax, bankruptcy and REMIC opinions) in form and
substance satisfactory to Lender and the Rating Agencies in Lender's and the
Rating Agencies' discretion, as applicable, (g) TIC Transferor Borrower shall
deliver (or cause to be delivered) to Lender, an endorsement to the
Title Insurance Policy relating to the change in the identity of the vestee and
the execution and delivery of the transfer documentation in form and substance
reasonably acceptable to Lender and (h) TIC Transferor Borrower pays all
reasonable expenses incurred by Lender in connection with such transfer,
including, without limitation, Lender's reasonable attorneys fees and expenses,
all recording fees, and all fees payable to the Title Company for the delivery
to Lender of the endorsement referred to in clause (g) above. Notwithstanding
the foregoing, (i) no TIC Transfer shall occur prior to the earlier to occur of
(y) six months from the Closing Date, and (z) the closing of a Secondary Market
Transaction, (ii) there shall be no more than seventy-five (75) separate
Borrowers at any time; and (iii) no TIC Transfer shall result in any Borrower,
together with its Affiliates and immediate family members of Affiliates, or
Affiliates thereof, owning in the aggregate, directly or indirectly (whether by
means of beneficial ownership or ownership of interests in entities which in
turn directly or indirectly, through multiple ownership tiers or otherwise, own
interests in Borrower or otherwise), more than a forty-nine percent (49%) of all
co-tenancy interests in the Property;
(ix) any transfer of a direct or indirect legal or beneficial
ownership interest in a Borrower that occurs by devise or bequest or by
operation of law upon the death of a natural person that was the holder of such
interest to the lineal descendants or other beneficiaries of such interest
holder or occurs by virtue of an inter vivos transfer or gift to a trust or
other legitimate estate planning vehicle established for the benefit of such
immediate family member, provided that (A) Manager continues to be responsible
for the management of the Property, and such transfer shall not result in a
change of the day to day operations of the Property, (B) the affected Borrower
shall remain a Single-Purpose Entity, (C) if such transfer would result in a
change of control of such Borrower and occurs before a Secondary Market
Transaction, Lender shall consent to such transfer within thirty (30) days after
such transfer, and (D) if such transfer would result in a change of control of
such Borrower and occurs after a Secondary Market Transaction, such Borrower, at
such Borrower's sole cost and expense, shall, within thirty (30) days after such
transfer, (a) deliver (or cause to be delivered) to Lender a Rating Agency
Confirmation with respect to such transfer, and opinion letters relating to such
transfer (including, without limitation, tax, bankruptcy and REMIC opinions) in
form and substance satisfactory to Lender and the Rating Agencies in their
discretion, respectively, (b) obtain the prior written consent of Lender to such
transfer (which consent shall not be unreasonably withheld, conditioned or
delayed) and (c) reimburse Lender for all reasonable expenses incurred by Lender
in connection with such transfer; and
(x) any TIC Transfer made pursuant to an option granted in the TIC
Agreement or the operating agreement of any Borrower provided that the TIC
Transferee Borrower is another Borrower existing at the time of the TIC Transfer
(or a Single-Purpose Entity controlled by the Sponsor formed for the purpose of
participating in the referenced TIC Transfer and who becomes a Borrower)(herein
referred to as a "Forced TIC Sale"); provided that prior to such Forced TIC
Sale: (a) TIC Transferee Borrower and a replacement guarantor affiliated
therewith shall execute and deliver any and all documentation to effectuate the
transfer as may be required by Lender or the Rating Agencies, in form and
substance satisfactory to Lender or the Rating Agencies in Lender's or the
Rating Agencies' discretion, as applicable (which documents, provided the TIC
Transferor Borrower is not then in default under the TIC Agreement, shall
provide for a release the TIC Transferor Borrower (and its related Guarantor)
from all liability under the Loan for act or events first occurring after the
effective date of the Transfer), (b) counsel to TIC Transferee Borrower and the
replacement guarantors and indemnitors shall deliver to Lender and the Rating
Agencies opinion letters relating to such transfer (including, without
limitation, tax, bankruptcy and REMIC opinions) in form and substance
satisfactory to Lender and the Rating Agencies in Lender's and the Rating
Agencies' discretion, as applicable, (c) TIC Transferor Borrower shall deliver
(or cause to be delivered) to Lender, an endorsement to the Title Insurance
Policy relating to the change in the identity of the vestee and the execution
and delivery of the transfer documentation in form and substance reasonably
acceptable to Lender and (d) TIC Transferee Borrower pays all reasonable
expenses incurred by Lender in connection with such transfer, including, without
limitation, Lender's reasonable attorneys fees and expenses, all recording fees,
and all fees payable to the Title Company for the delivery to Lender of the
endorsement referred to in clause (c) above. Notwithstanding the foregoing, (i)
there shall be no more than seventy-five (75) separate Borrowers at any time;
and (ii) there shall be no separate assumption fee, administrative fee,
underwriting fee or other transfer fee charged by Lender in connection with a
Forced TIC Sale.
ANNEX B (TO SCHEDULE I)
MORTGAGED PROPERTIES AS TO WHICH THE ONLY ENVIRONMENTAL INVESTIGATIONS CONDUCTED
IN CONNECTION WITH THE ORIGINATION OF THE RELATED MORTGAGE LOAN WERE WITH
RESPECT TO ASBESTOS-CONTAINING MATERIALS AND LEAD-BASED PAINT.
(REPRESENTATION 12)
None.
ANNEX C (TO SCHEDULE I)
MORTGAGE LOANS COVERED BY SECURED CREDITOR IMPAIRED PROPERTY
ENVIRONMENTAL INSURANCE POLICIES
(REPRESENTATIONS 12 AND 49)
None.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[ATTACHED]
SCHEDULE II (COUNTRYWIDE MLPA)
<TABLE>
MORTGAGE
LOAN PROPERTY
LOAN # PROPERTY NAME SELLER TYPE ADDRESS CITY
------ ------------- -------- --------- ------- ----
0 XXX Xxxxxxxx Xxxx I CRF Office Various Herndon
4.01 Plaza Ridge II CRF Office 2250 Corporate Park Drive Herndon
4.02 South Pointe II CRF Office 2300 Corporate Park Drive Herndon
4.03 South Pointe I CRF Office 2350 Corporate Park Drive Xxxxxxx
6 HSA Industrial Portfolio I CRF Industrial Various Various
6.01 EGL Eagle Global Logistics CRF Industrial 2727 London-Groveport Road Groveport
6.02 Xxxxxxx Sales Company Xxxxxxxxx XXX Xxxxxxxxxx 0000-0000 and 0000 Xxxxxxxx Xxxxx Xxxxxxxx
6.03 The Gap, Inc. Building CRF Industrial 0000 Xxxxxxx Xxxxx Xxxxxx
0.00 Xxxxx XXX Airfreight, Inc. CRF Industrial 0000 Xxxx Xxxx Xxxxxxxxx
6.05 MBM Foods Building CRF Industrial 4300 Diplomacy Drive Columbus
6.06 Hammacher Xxxxxxxxx & Co. CRF Industrial 0000 XxXxxxx Xxxxx Xxxxxxxxx
6.07 Sears Logistics Services, Inc. CRF Industrial 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx
6.08 Georgesville Commerce Center Building CRF Industrial 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx
6.09 Sears Logistics Services, Inc. CRF Industrial 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxx
00 Xxxxxxx Xxxxx Shopping Center CRF Retail 1435 - 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx
11 Xxxxxxxxxx Portfolio IIB CRF Hospitality Various Various
11.01 Homewood Suites by Hilton - Grapevine CRF Hospitality 0000 Xxxxxxxxx Xxxxx Xxxxxx Grapevine
11.02 Residence Inn by Marriott - Houston CRF Hospitality 000 Xxxxx Xxx Xxxxxxx Xxxx Xxxxxxx
11.03 Courtyard by Marriott - Houston CRF Hospitality 00000 Xxxxxxxxxx Xxxxx Xxxxxxx
11.04 Hampton Inn - Rancho Xxxxxxx CRF Hospitality 00000 Xxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx CRF Hospitality 0000 Xxxxx-Xxxxxxxx Xxxx XX Xxxxxx
11.06 Residence Inn by Marriott - Independence CRF Hospitality 0000 Xxxxx Xxxxxxxxx Xxxxxx Independence
11.07 Residence Inn by Marriott - Bloomingdale CRF Hospitality 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxx
11.08 Courtyard by Marriot - Bloomingdale CRF Hospitality 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxx
11.09 Fairfield Inn and Suites - Kansas City CRF Hospitality 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx City
11.10 Fairfield Inn by Marriott - Independence CRF Hospitality 00000 Xxxx 00xx Xxxxxxx Independence
14 West Valley Medical CRF Office 5353,5359,5363 Balboa Boulevard Encino
16 Xxxxxxxxxx Portfolio IIA CRF Hospitality Various Various
16.01 Fairfield Inn by Marriott - Roseville CRF Hospitality 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx
16.02 Homewood Suites by Hilton - Dallas CRF Hospitality 0000 Xxxxxxxxx Xxxxx Xxxxxx
16.03 Hampton Inn - Shawnee CRF Hospitality 0000 Xxxxx Xxxxxxxx Xxxxxx Shawnee
16.04 Fairfield Inn - Cheyenne CRF Hospitality 0000 Xxxxxxxxxx Xxxxxx Cheyenne
16.05 Springhill Suites by Marriott - Phoenix CRF Hospitality 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx
16.06 Fairfield Inn and Suites - Naperville CRF Hospitality 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx
16.07 Hawthorne Suites - Naperville CRF Hospitality 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxx
16.08 TownePlace Suites - Phoenix CRF Hospitality 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx
16.09 Fairfield Inn - Racine CRF Hospitality 0000 Xxxxxxxxxx Xxxxxx Xxxx xx Xxxxx Xxxxxxxx
16.10 Sleep Inn - Missoula CRF Hospitality 3425 Xxxx Xxxx Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard CRF Hospitality 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxx
16.12 Leased Fee Interest - Bloomingdale Residence Inn CRF Hospitality 000 Xxxxxxxxx Xxxxx Xxxxxxxxxxxx
16.13 Leased Fee Interest - Kansas City Fairfield Inn CRF Hospitality 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx City
21 Holy Cross Medical Center CRF Xxxxxx 00000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx
27 First National Bank of Arizona Headquarters CRF Xxxxxx 00000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxxx
28 Dulles Creek XXX Xxxxxx 00000 Coppermine Road Xxxxxxx
29 Tuscany at XxXxxxxxx Ranch CRF Multifamily 0000 Xxxx Xxx Xxxxxx Xxxxx Xxxxxxxxxx
30 Home Depot CRF Retail 000 Xxxx 000xx Xxxxxx Xxxxxxx
52 Arcadia Del Sol CRF Multifamily 0000 Xxxx Xxxxxx Xxxxxx Xxxx Xxxxxxx
54 Casa Grande Center CRF Retail 0000-0000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxx Grande
00 Xxxxxxx Xxxxx Xxxxxxxxxx XXX Multifamily 0000 Xxxxxxx Xxxxxxx Xxx Xxxxx
56 Xxxx and Buster's CRF Retail 0000 Xxxxxx Xxx Xxx Xxxxx Xxx Xxxxx
59 000 Xxxxxxxxx Xxxxxx XXX Industrial 000 Xxxxxxxxx Xxxxxx Xxxxxxxx
60 San Xxxxx Medical Center CRF Office 0000 Xxxx Xxxxx Xxxxxx San Xxxxx
63 Tamarack Apartments CRF Multifamily 0000 Xxxx Xxxxx Xxxx'x Xxxx Xxxxxx
66 Recker Xxxxx Center CRF Retail 0000 Xxxxx Xxxxxx Xxxx Xxxx
71 Xxxxxx Office Center CRF Office 0000 Xxxxxx Xxxxxx Tarzana
73 Corners Apartments CRF Multifamily 7878 Xxxxxx D Love Freeway Dallas
77 Center Medical Xxxxxxxx XXX Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxx
81 00 Xxxx Xxxxxxx - Xxxxxxxxx, XX CRF Retail 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx Henderson
89 CVS - Homosassa CRF Retail 0000 Xxxxx Xxxxxxxx Xxxxxxx Homosassa
90 Xxxxx Village Center CRF Mixed Use 23226-23254 Xxxxx Avenue Santa Clarita
92 Bridgeworks Industrial Center CRF Industrial 000-00 Xxxxx 00xx Xxxxxx Xxxxxxxxx
94 Auburn Business Center CRF Industrial 2015, 2025 & 0000 Xxxxxxx Xxxxx Xxxxxx
99 Desert Colony Town Homes CRF Multifamily 0000 Xxxx Xxxxxx X0 Xxxxxxxxx
104 24 Hour Fitness - Monrovia, CA CRF Retail 000 Xxxx Xxxxxxxxxx Xxxxx Monrovia
</TABLE>
<TABLE>
CUTOFF BALANCE ORIGINAL IO MONTHLY IO ANNUAL MONTHLY P&I
LOAN # COUNTY STATE ZIP CODE (6/1/2005) BALANCE DEBT SERVICE DEBT SERVICE DEBT SERVICE
------ ------ ------ -------- -------------- -------- ------------ ------------ ------------
4 Xxxxxxx XX 00000 88,500,000.00 88,500,000.00 435,934.20 5,231,210.42 520,968.39
4.01 Xxxxxxx XX 00000 30,900,000.00 30,900,000.00
4.02 Xxxxxxx XX 00000 30,200,000.00 30,200,000.00
4.03 Xxxxxxx XX 00000 27,400,000.00 27,400,000.00
6 Various Various Various 63,000,000.00 63,000,000.00 300,478.65 3,605,743.75 363,459.45
6.01 Xxxxxxxx XX 00000 16,400,000.00 16,400,000.00
6.02 Xxxxxxxx XX 00000 12,900,000.00 12,900,000.00
6.03 Xxxxx XX 00000 7,600,000.00 7,600,000.00
6.04 Xxxxxxxx XX 00000 7,100,000.00 7,100,000.00
6.05 Xxxxxxxx XX 00000 7,075,000.00 7,075,000.00
6.06 Xxxxxx XX 00000 3,860,000.00 3,860,000.00
6.07 Xxxxxxxx XX 00000 2,900,000.00 2,900,000.00
6.08 Xxxxxxxx XX 00000 2,625,000.00 2,625,000.00
6.09 Xxxxxxxx XX 00000 2,540,000.00 2,540,000.00
10 Xxxx XX 00000 36,700,000.00 36,700,000.00 174,575.61 2,094,907.36 211,381.77
11 Various Various Various 34,875,818.76 35,116,000.00 236,391.77
11.01 Xxxxxxx XX 00000 5,455,429.79 5,493,000.00
11.02 Xxxxxx XX 00000 5,397,826.49 5,435,000.00
11.03 Xxxxxx XX 00000 4,386,789.25 4,417,000.00
11.04 Xxxxxxxxxx XX 00000 3,824,660.50 3,851,000.00
11.05 Xxxxxxxx XX 00000 3,489,965.46 3,514,000.00
11.06 Xxxxxxx XX 00000 3,203,935.28 3,226,000.00
11.07 XxXxxx XX 00000 3,042,050.14 3,063,000.00
11.08 XxXxxx XX 00000 2,479,921.39 2,497,000.00
11.09 Xxxx XX 00000 2,078,684.61 2,093,000.00
11.10 Xxxxxxx XX 00000 1,516,555.85 1,527,000.00
14 Xxx Xxxxxxx XX 00000 28,000,000.00 28,000,000.00 131,535.19 1,578,422.22 160,036.57
16 Various Various Various 22,727,481.39 22,884,000.00 154,049.13
16.01 Xxxxxx XX 00000 2,756,019.96 2,775,000.00
16.02 Xxxxxx XX 00000 2,756,019.96 2,775,000.00
16.03 Xxxxxxxxxxxx XX 00000 2,251,494.51 2,267,000.00
16.04 Xxxxxxx XX 00000 2,250,501.35 2,266,000.00
16.05 Xxxxxxxx XX 00000 2,250,501.35 2,266,000.00
16.06 XxXxxx XX 00000 2,078,684.61 2,093,000.00
16.07 XxXxxx XX 00000 2,078,684.61 2,093,000.00
16.08 Xxxxxxxx XX 00000 1,916,799.47 1,930,000.00
16.09 Xxxxxx XX 00000 1,411,280.85 1,421,000.00
16.10 Xxxxxxxx XX 00000 1,239,464.11 1,248,000.00
16.11 XxXxxx XX 00000 705,143.85 710,000.00
16.12 XxXxxx XX 00000 705,143.85 710,000.00
16.13 Xxxx XX 00000 327,742.91 330,000.00
21 Xxx Xxxxxxx XX 00000 17,800,000.00 17,800,000.00 85,874.70 1,030,496.39 103,424.10
27 Xxxxxxxx XX 00000 14,479,859.79 14,500,000.00 89,562.99
28 Xxxxxxx XX 00000 14,200,000.00 14,200,000.00 65,747.32 788,967.78 80,447.94
29 Xxxxxxxx XX 00000 13,972,976.96 13,972,976.96 84,314.83
30 Xxx Xxxxxxx XX 00000 13,472,201.40 13,500,000.00 76,313.05
52 Xxxxxxxx XX 00000 9,350,000.00 9,350,000.00 43,370.37 520,444.38 53,029.62
00 Xxxxx XX 00000 8,933,849.93 8,960,000.00 51,493.99
55 Xxxxx XX 00000 8,600,000.00 8,600,000.00 42,943.26 515,319.17 51,064.78
56 Xxx Xxxxx XX 00000 8,325,000.00 8,325,000.00 47,007.60
00 Xxxxxxxxx XX 0000 7,912,508.68 7,920,000.00 44,881.97
60 Xxx Xxxxxxx XX 00000 7,700,000.00 7,700,000.00 36,692.64 440,311.67 44,398.49
63 Xxxx XX 00000 7,450,000.00 7,450,000.00 33,990.63 407,887.50 41,834.04
66 Xxxxxxxx XX 00000 7,159,006.77 7,180,000.00 41,227.93
71 Xxx Xxxxxxx XX 00000 5,794,778.69 5,800,000.00 33,589.75
73 Xxxxxx XX 00000 5,748,392.13 5,760,000.00 32,921.81
77 Xxxxxx XX 00000 5,500,000.00 5,500,000.00 31,193.90
81 Xxxxx XX 00000 4,750,000.00 4,750,000.00 26,821.16
89 Xxxxxx XX 00000 4,231,000.00 4,231,000.00 19,375.43 232,505.20 23,811.22
90 Xxx Xxxxxxx XX 00000 4,195,568.76 4,200,000.00 25,046.24
92 Xxxxxx XX 00000 4,000,000.00 4,000,000.00 25,236.82
94 Xxxxxx XX 00000 3,738,880.46 3,750,000.00 21,386.29
99 Xxx Xxxxxxx XX 00000 2,997,333.41 3,000,000.00 17,469.09
104 Xxx Xxxxxxx XX 00000 2,700,000.00 2,700,000.00 15,245.71
</TABLE>
<TABLE>
NET
PRIMARY MASTER TRUSTEE & MORTGAGE
ANNUAL P&I INTEREST SERVICING SERVICING PAYING BROKER ADMIN. INTEREST ACCRUAL
LOAN # DEBT SERVICE RATE (%) FEE RATE FEE RATE AGENT FEE STRIP RATE FEE RATE TYPE TERM
------- ------------ -------- --------- --------- --------- ---------- ------- --------- ------- -----
4 6,251,620.68 5.8300 0.02000 0.01000 0.00130 0.03130 5.7987 Actual/360 120
4.01
4.02
4.03
6 4,361,513.40 5.6450 0.02000 0.01000 0.00130 0.03130 5.6137 Actual/360 120
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
10 2,536,581.24 5.6300 0.02000 0.01000 0.00130 0.03130 5.5987 Actual/360 120
11 2,836,701.24 5.2380 0.02000 0.01000 0.00130 0.03130 5.2067 Actual/360 120
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
11.10
14 1,920,438.84 5.5600 0.02000 0.01000 0.00130 0.03130 5.5287 Actual/360 120
16 1,848,589.56 5.2380 0.02000 0.01000 0.00130 0.03130 5.2067 Actual/360 120
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
16.12
16.13
21 1,241,089.20 5.7100 0.02000 0.01000 0.00130 0.03130 5.6787 Actual/360 120
27 1,074,755.88 5.5600 0.02000 0.01000 0.00130 0.03130 5.5287 Actual/360 120
28 965,375.28 5.4800 0.02000 0.01000 0.00130 0.03130 5.4487 Actual/360 60
29 1,011,777.96 6.0600 0.02000 0.01000 0.00130 0.03130 6.0287 Actual/360 117
30 915,756.60 5.4600 0.02000 0.01000 0.00130 0.03130 5.4287 Actual/360 84
52 636,355.44 5.4900 0.02000 0.01000 0.00130 0.03130 5.4587 Actual/360 120
54 617,927.88 5.6100 0.02000 0.01000 0.00130 0.03130 5.5787 Actual/360 120
55 612,777.36 5.9100 0.02000 0.01000 0.00130 0.03130 5.8787 Actual/360 120
56 564,091.20 5.4500 0.02000 0.01000 0.00130 0.03130 5.4187 Actual/360 120
59 538,583.64 5.4825 0.02000 0.01000 0.00130 0.03130 5.4512 Actual/360 120
60 532,781.88 5.6400 0.02000 0.01000 0.00130 0.03130 5.6087 Actual/360 120
63 502,008.48 5.4000 0.02000 0.01000 0.00130 0.03130 5.3687 Actual/360 120
66 494,735.16 5.6020 0.02000 0.01000 0.00130 0.03130 5.5707 Actual/360 120
71 403,077.00 5.6800 0.02000 0.01000 0.00130 0.03130 5.6487 Actual/360 120
73 395,061.72 5.5600 0.02000 0.01000 0.00130 0.03130 5.5287 Actual/360 120
77 374,326.80 5.4900 0.02000 0.01000 0.00130 0.03130 5.4587 Actual/360 120
81 321,853.92 5.4500 0.02000 0.01000 0.00130 0.03130 5.4187 Actual/360 120
89 285,734.64 5.4200 0.02000 0.01000 0.00130 0.03130 5.3887 Actual/360 120
90 300,554.88 5.7000 0.02000 0.01000 0.00130 0.03130 5.6687 Actual/360 120
92 302,841.84 5.7800 0.02000 0.01000 0.00130 0.03130 5.7487 Actual/360 120
94 256,635.48 5.5400 0.02000 0.01000 0.00130 0.03130 5.5087 Actual/360 120
99 209,629.08 5.7300 0.02000 0.01000 0.00130 0.03130 5.6987 Actual/360 120
104 182,948.52 5.4500 0.02000 0.01000 0.00130 0.03130 5.4187 Actual/360 120
</TABLE>
<TABLE>
REMAINING
REMAINING MATURITY/ AMORT AMORT TITLE ARD
LOAN # TERM ARD DATE TERM TERM TYPE Y/N ARD STEP UP (%)
------ ---- -------- ---- ---- ---- --- ---------------
4 120 6/8/2015 360 360 Fee No
4.01 120 Fee No
4.02 120 Fee No
4.03 120 Fee No
6 120 6/8/2015 360 360 Fee No
6.01 120 Fee No
6.02 120 Fee No
6.03 120 Fee No
6.04 120 Fee No
6.05 120 Fee No
6.06 120 Fee No
6.07 120 Fee No
6.08 120 Fee No
6.09 120 Fee No
10 119 5/8/2015 360 360 Fee No
11 117 3/8/2015 240 237 Various No
11.01 117 Fee No
11.02 117 Fee No
11.03 117 Fee No
11.04 117 Fee No
11.05 117 Fee No
11.06 117 Fee No
11.07 117 Leasehold No
11.08 117 Leasehold No
11.09 117 Leasehold No
11.10 117 Fee No
14 120 6/8/2015 360 360 Fee No
16 117 3/8/2015 240 237 Fee No
16.01 117 Fee No
16.02 117 Fee No
16.03 117 Fee No
16.04 117 Fee No
16.05 117 Fee No
16.06 117 Fee No
16.07 117 Fee No
16.08 117 Fee No
16.09 117 Fee No
16.10 117 Fee No
16.11 117 Fee No
16.12 117 Fee No
16.13 117 Fee No
21 118 4/8/2015 360 360 Fee No
27 119 5/8/2015 300 299 Fee No
28 58 4/8/2010 360 360 Fee Yes Greater of: (i) Initial Note Rate plus 5.0% or
(ii) Treasury Rate plus 6.3%.
29 117 3/8/2015 360 360 Fee No
30 82 4/8/2012 360 358 Fee No
52 119 5/8/2015 360 360 Fee No
54 117 3/8/2015 360 357 Fee No
55 118 4/8/2015 360 360 Fee No
56 120 6/8/2015 360 360 Leasehold Yes Greater of: (i) Initial Note Rate plus 5.0% or
(ii) Treasury Rate plus 6.25%.
59 119 5/8/2015 360 359 Fee No
60 118 4/8/2015 360 360 Fee No
63 118 4/8/2015 360 360 Fee No
66 117 3/8/2015 360 357 Fee No
71 119 5/8/2015 360 359 Fee No
73 118 4/8/2015 360 358 Fee No
77 120 6/8/2015 360 360 Fee No
81 120 6/8/2015 360 360 Fee Yes Greater of: (i) Initial Note Rate plus 5.0% or
(ii) Treasury Rate plus 6.25%.
89 118 4/8/2015 360 360 Fee No
90 119 5/8/2015 336 335 Fee No
92 120 6/8/2015 300 300 Fee No
94 117 3/8/2015 360 357 Fee No
99 119 5/8/2015 360 359 Fee No
104 120 6/8/2015 360 360 Fee Yes Greater of: (i) Initial Note Rate plus 5.0% or
(ii) Treasury Rate plus 6.25%.
</TABLE>
<TABLE>
ENVIRONMENTAL ENVIRONMENTAL CROSS- CROSS- DEFEASANCE LETTER OF LOCKBOX HOLDBACK
LOAN # REPORT TYPE INSURANCE (Y/N) DEFAULTED COLLATERALIZED ALLOWED CREDIT IN-PLACE AMT
------ ----------- --------------- --------- -------------- ------- ------ -------- ---
4 Phase I No Yes No Yes Yes
4.01 Phase I No
4.02 Phase I No
4.03 Phase I No
6 Phase I No Yes No Yes No
6.01 Phase I No
6.02 Phase I No
6.03 Phase I No
6.04 Phase I No
6.05 Phase I No
6.06 Phase I No
6.07 Phase I No
6.08 Phase I No
6.09 Phase I No
10 Phase I No Yes Yes Yes No
11 Phase I No Yes No Yes No
11.01 Phase I No
11.02 Phase I No
11.03 Phase I No
11.04 Phase I No
11.05 Phase I No
11.06 Phase I No
11.07 Phase I No
11.08 Phase I No
11.09 Phase I No
11.10 Phase I No
14 Phase I No Yes No Yes No
16 Phase I No Yes No Yes No
16.01 Phase I No
16.02 Phase I No
16.03 Phase I No
16.04 Phase I No
16.05 Phase I No
16.06 Phase I No
16.07 Phase I No
16.08 Phase I No
16.09 Phase I No
16.10 Phase I No
16.11
16.12
16.13
21 Phase I No Yes No Yes No
27 Phase I No Yes No No
28 Phase I No Yes No Yes No
29 Phase I No Yes No Yes
30 Phase I No Yes No Yes No
52 Phase I No Yes No No
54 Phase I No Yes No Yes No
55 Phase I No Yes No Yes No
56 Phase I No Yes Yes Yes No Yes No
59 Phase I No Yes No Yes Yes
60 Phase I No Yes No Yes No
63 Phase I No Yes No No
66 Phase I No Yes No Yes Yes
71 Phase I No Yes No No
73 Phase I No Yes No Yes No
77 Phase I No Yes No No
81 Phase I No Yes Yes Yes No Yes No
89 Phase I No Yes No No
90 Phase I No Yes No No
92 Phase I No Yes No No
94 Phase I No Yes No No
99 Phase I No Yes No No
104 Phase I No Yes Yes Yes No Yes No
</TABLE>
<TABLE>
UPFRONT UPFRONT UPFRONT UPFRONT UPFRONT
UPFRONT ENG. CAPEX ENVIR. TI/LC UPFRONT RE INSURANCE OTHER
LOAN # RESERVE RESERVES RESERVE RESERVE TAX RESERVE RESERVE RESERVE
------ ------- -------- ------- ------- ----------- ------- -------
4 373,759.78 52,904.58
4.01
4.02
4.03
6 940,000.00 218,850.00
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
10 74,469.54 24,488.00
11 188,000.07 330,300.26 60,364.00
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
11.10
14 19,900.00 94,467.95
16 128,089.18 193,739.98
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
16.12
16.13
21 13,688.00 35,769.00 25,041.71
27
28 200,000.00 59,222.33 5,790.25
29 7,932.00 10,202.00
30 400,000.00 4,861.00
52 10,341.00 21,031.66 17,375.00
54 3,750.00 12,437.00
55 12,689.00 11,670.00 12,712.00
56 22,070.00
59 4,937.50 47,705.00 24,148.00
60 36,293.75 81,968.75 19,945.47 4,470.64
63
66 2,187.50 3,844.00
71 137,500.00 30,800.00
73 3,081.00 5,062.50 43,377.00 16,272.00 10,081.00
77 29,718.72 5,001.16
81 12,303.75
89
90 67,275.00 17,962.00 4,490.00
92 8,625.00 31,100.67 25,124.40
94 500.00 4,534.72 2,337.31
99 36,813.00 10,171.00 3,130.00
104 88,705.00
</TABLE>
<TABLE>
MONTHLY MONTHLY MONTHLY MONTHLY MONTHLY
CAPEX ENVIR. TI/LC MONTHLY RE INSURANCE OTHER
LOAN # UPFRONT OTHER DESCRIPTION RESERVE RESERVE RESERVE TAX RESERVE RESERVE RESERVE
------ ------------------------- ------- ------- ------- ----------- ------- -------
4 3,993.05 35,138.84 62,293.30 13,258.33
4.01
4.02
4.03
6 Xxxxxxx Rent Abatement 40,113.58
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
10 414.67 74,469.54
11 Ground Lease Reserve 76,208.97
11.01
11.02
11.03
11.04
11.05
11.06
11.07
11.08
11.09
11.10
14 1,294.00 10,811.00 18,893.59 4,632.60
16 62,750.78
16.01
16.02
16.03
16.04
16.05
16.06
16.07
16.08
16.09
16.10
16.11
16.12
16.13
21 1,536.00 9,523.00 11,923.00 2,782.41
27 2,142.00
28 729.68 14,805.58 2,895.12
29 1,521.00 7,932.00 5,101.00
30 1,875.00 5,000.00 1,620.00 1,255.00
52 4,333.00 7,010.55 4,343.75
54 1,873.00 4,691.00 12,437.00 1,921.00
55 3,813.00 5,835.00 1,589.00
56 Ground Lease Reserve
59 1,455.90 3,979.46 9,541.00 2,081.08
60 1,029.56 6,648.49 1,490.21
63 5,062.50 10,309.58 2,796.17
66 887.42 2,218.54 3,844.00 1,099.00
71 820.00 4,100.00 7,700.00 821.00
73 Termite Remediation 5,062.50 14,459.00 2,712.00
77 7,429.68 1,250.29
81
89
90 477.00 2,385.00 4,834.00 806.00
92 4,400.00 3,178.42 4,450.00 2,093.70
94 530.00 2,650.00 2,267.36 776.36
99 750.00 2,543.00 1,043.00
104
</TABLE>
<TABLE>
OTHER MONTH TOTAL UNIT OF GRACE LOAN
LOAN # DESCRIPTION SF/UNITS MEASURE PERIOD GROUP
------ ----------- -------- ------- ------ -----
4 479,166 SF 0 1
4.01 158,888 SF 1
4.02 159,737 SF 1
4.03 160,541 SF 1
6 2,270,205 SF 0 1
6.01 509,190 SF 1
6.02 505,040 SF 1
6.03 325,000 SF 1
6.04 240,000 SF 1
6.05 237,170 SF 1
6.06 124,880 SF 1
6.07 120,000 SF 1
6.08 112,600 SF 1
6.09 96,325 SF 1
10 134,329 SF 0 1
11 853 Rooms 0 1
11.01 105 Rooms 1
11.02 105 Rooms 1
11.03 90 Rooms 1
11.04 87 Rooms 1
11.05 64 Rooms 1
11.06 80 Rooms 1
11.07 96 Rooms 1
11.08 93 Rooms 1
11.09 70 Rooms 1
11.10 63 Rooms 1
14 103,189 SF 0 1
16 709 Rooms 0 1
16.01 81 Rooms 1
16.02 78 Rooms 1
16.03 64 Rooms 1
16.04 62 Rooms 1
16.05 81 Rooms 1
16.06 64 Rooms 1
16.07 63 Rooms 1
16.08 94 Rooms 1
16.09 63 Rooms 1
16.10 59 Rooms 1
16.11 1
16.12 1
16.13 1
21 73,724 SF 0 1
27 128,502 SF 0 1
28 87,562 SF 0 1
29 73 Units 0 1
30 150,000 SF 0 1
52 260 Units 0 2
54 93,812 SF 0 1
55 183 Units 0 1
56 45,000 SF 0 1
59 116,472 SF 0 1
60 61,760 SF 0 1
63 270 Units 0 2
66 53,245 SF 0 1
71 49,205 SF 0 1
73 243 Units 0 2
77 56,041 SF 0 1
81 26,000 SF 0 1
89 13,813 SF 0 1
90 28,631 SF 0 1
92 264,000 SF 0 1
94 42,400 SF 0 1
99 36 Units 0 2
104 17,000 SF 0 1
</TABLE>
