EXHIBIT 4.3
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
GMAC COMMERCIAL MORTGAGE CORPORATION
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of November 1, 2005
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date...................
Section 2. Closing Date Actions...........................................
Section 3. Conveyance of Mortgage Loans...................................
Section 4. Depositor's Conditions to Closing..............................
Section 5. Seller's Conditions to Closing.................................
Section 6. Representations and Warranties of Seller.......................
Section 7. Obligations of Seller..........................................
Section 8. Crossed Mortgage Loans.........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance ...................................................
Section 10. Representations and Warranties of Depositor....................
Section 11. Survival of Certain Representations, Warranties and Covenants..
Section 12. Transaction Expenses...........................................
Section 13. Recording Costs and Expenses...................................
Section 14. Notices........................................................
Section 15. Examination of Mortgage Files..................................
Section 16. Successors.....................................................
Section 17. Governing Law..................................................
Section 18. Severability...................................................
Section 19. Further Assurances.............................................
Section 20. Counterparts...................................................
Section 21. Treatment as Security Agreement................................
Section 22. Recordation of Agreement.......................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for GMACCM Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of November 1, 2005, is made by and between GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against receipt by
Seller of a trust receipt, pursuant to an arrangement between Seller and the
Trustee; provided, however, that item (p) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall purchase
from Seller, the Mortgage Loans pursuant to this Agreement for the
Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller or at its direction by
wire transfer in immediately available funds to an account designated by
Seller on or prior to the Closing Date (or, by such other method as shall
be mutually acceptable to Depositor and Seller). The "Mortgage Loan
Purchase Price" paid by Depositor shall be equal to the amount that the
Depositor and the Seller have mutually agreed upon as the Seller's share
of the net securitization proceeds from the sale of the Publicly Offered
Certificates and the Private Certificates as set forth in the Closing
Statement (which amount includes, without limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing Agreement,
Depositor shall sell all of its right, title and interest in and to the
Mortgage Loans to the Trustee for the benefit of the Holders of the
Certificates.
(iii) Depositor shall sell to the Underwriters, and the Underwriters
shall purchase from Depositor, the Publicly Offered Certificates pursuant
to the Underwriting Agreement, and Depositor shall sell to the Initial
Purchaser, and the Initial Purchaser shall purchase from Depositor, the
Private Certificates pursuant to the Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered Certificates
for sale to the public pursuant to the Prospectus and the Prospectus
Supplement and the Initial Purchaser will privately place certain classes
of the Private Certificates pursuant to the Offering Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all
property of Seller described in Section 21(b) of this Agreement, including,
without limitation, (A) all scheduled payments of interest and principal due on
or with respect to the Mortgage Loans after the Cut-off Date and (B) all other
payments of interest, principal or yield maintenance charges received on or with
respect to the Mortgage Loans after the Cut-off Date, other than any such
payments of interest or principal or yield maintenance charges that were due on
or prior to the Cut-off Date. The Mortgage File for each Mortgage Loan shall
contain the following documents on a collective basis:
(a) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit B hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements, assignments or allonges
showing a complete chain of endorsement or assignment from the Mortgage Loan
Originator either in blank or to Seller, and further endorsed (at the direction
of Depositor given pursuant to this Agreement) by Seller, on its face or by
allonge attached thereto, without recourse, either in blank or to the order of
the Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of recording
indicated thereon;
(c) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable, completion of
the name of the assignee), from Seller (or the Mortgage Loan Originator) either
in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-C5";
(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), in recordable form (except for any
missing recording information and, if applicable, completion of the name of the
assignee), from Seller (or the Mortgage Loan Originator), either in blank or to
"Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-C5";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording (including
the filing number or other similar filing information) acceptable to the Trustee
(including, without limitation, evidence of such filed or recorded UCC Financing
Statement as shown on a written UCC search report from a reputable search firm,
such as Corporation Service Company, CT Corporation System and the like or
printouts of on-line confirmations from such UCC filing or recording offices or
authorized agents thereof), sufficient to perfect (and maintain the perfection
of) the security interest held by the Mortgage Loan Originator (and each
assignee of record prior to the Trustee) in and to the personalty of the
Borrower at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to assign
each such UCC Financing Statement to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including any mezzanine loan documents or
preferred equity documents, and a copy of the promissory note relating to such
other debt (if such other debt is also secured by the related Mortgage);
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from the related
Mortgage and Loan Agreement);
(p) the originals and copies of letters of credit, if any, relating
to the Mortgage Loans and amendments thereto which entitles the Trust to draw
thereon; provided that in connection with the delivery of the Mortgage File to
the Trust, such originals shall be delivered to the applicable Master Servicer
and copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(r) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any originals or copies of
amendments, modifications or extensions thereto, if any;
(s) Reserved;
(t) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents;
(u) a checklist of the documents included in the subject Mortgage
File;
(v) if applicable, the original or a counterpart of any post-closing
agreement relating to any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Borrower) required to be added to the
Mortgage File pursuant to Section 3.20(l) of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above and with
evidence of recording or filing thereon on the Closing Date, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller: (i)
shall deliver, or cause to be delivered, to the Trustee or its designee a
duplicate original or true copy of such document or instrument certified by the
applicable public recording or filing office, the applicable title insurance
company or Seller to be a true and complete duplicate original or copy of the
original thereof submitted for recording or filing; and (ii) shall deliver, or
cause to be delivered, to the Trustee or its designee either the original of
such non-delivered document or instrument, or a photocopy thereof (certified by
the appropriate public recording or filing office to be a true and complete copy
of the original thereof submitted for recording or filing), with evidence of
recording or filing thereon (with a copy to the applicable Master Servicer),
within 120 days of the Closing Date, which period may be extended up to two
times, in each case for an additional period of 45 days (provided that Seller,
as certified in writing to the Trustee prior to each such 45-day extension, is
in good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy). Compliance with this paragraph will satisfy
Seller's delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon for any other reason, including without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this Agreement shall be deemed to have been satisfied
and such non-delivered document or instrument shall be deemed to have been
included in the related Mortgage File if a photocopy of such non-delivered
document or instrument (with evidence of recording or filing thereon and
certified by the appropriate recording or filing office to be a true and
complete copy of the original thereof as filed or recorded) is delivered to the
Trustee (with a copy to the applicable Master Servicer) on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller shall so notify the Trustee and shall
not be in breach of its obligations with respect to such delivery, provided that
Seller promptly forwards such UCC Financing Statement to the Trustee (with a
copy to the applicable Master Servicer) upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC Financing
Statements to the Trustee to be delivered pursuant to clauses (c), (e), (k), and
(n) above (collectively, the "Assignments"), to submit those Assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver those Assignments to the Trustee (with a copy
to the applicable Master Servicer) or its designee as those Assignments (or
certified copies thereof) are received from the applicable filing and recording
offices with evidence of such filing or recording indicated thereon. However, in
the event Seller engages a third-party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of Seller
pursuant to this Agreement remain binding on Seller; and, if Seller does not
engage a third party as contemplated by the immediately preceding sentence, then
Seller will still be liable for recording and filing fees and expenses of the
Assignments as and to the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, rent rolls, leases, environmental and
engineering reports, third-party underwriting reports, appraisals, surveys,
legal opinions, estoppels, financial statements, operating statements and any
other information provided by the respective Borrower from time to time, but
excluding any draft documents, attorney/client communications, which are
privileged or constitute legal or other due diligence analyses, and documents
prepared by Seller or any of its Affiliates solely for internal communication,
credit underwriting or due diligence analyses (other than the underwriting
information contained in the related underwriting memorandum or asset summary
report prepared by the Seller in connection with the preparation of Exhibit A-1
to the Prospectus Supplement)) that are not required to be a part of a Mortgage
File in accordance with the definition thereof, together with copies of all
instruments and documents which are required to be a part of the related
Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller (within 30 days after the Closing Date) shall cause to be
prepared, executed and delivered to the issuer of each such letter of credit
such notices, assignments and acknowledgements as are required under such letter
of credit to assign, without recourse, to, and vest in, the Trustee (in care of
the applicable Master Servicer) (whether by actual assignment or by amendment of
the letter of credit) the Seller's rights as the beneficiary thereof and drawing
party thereunder. The designated beneficiary under each letter of credit
referred to in the preceding sentence shall be the Trustee (in care of the
applicable Master Servicer).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File," if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer) for deposit into Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage Loan and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Upon the sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to Depositor, as provided herein, as a sale of the Mortgage Loans
to Depositor in exchange for the consideration specified in Section 2 hereof. In
connection with the foregoing, upon sale of Certificates representing at least
10% of the fair value of all the Certificates to unaffiliated third parties,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Regardless of its treatment
of the transfer of the Mortgage Loans to the Depositor under GAAP, Seller shall
at all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent to clearly reflect that the Mortgage Loans have been transferred
to Depositor and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Pooling and Servicing Agreement, and further except for
actions that Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1
of this Agreement, which shall have been delivered to and held by
the Trustee or its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and warranties set forth in Section 6(a) (subject to the exceptions
set forth in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, covering various corporate matters and such other
matters as shall be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request; and
(vi) all other information, documents, certificates, or
letters with respect to the Mortgage Loans or Seller and its
Affiliates as are reasonably requested by Depositor in order for
Depositor to perform any of it obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to any
sale of Mortgage Loans by Depositor as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
Seller, any Mortgage Loan Documents required to be recorded and any intervening
assignments with evidence of recording thereon that are required to be included
in the Mortgage Files. Seller shall reasonably cooperate with the Trustee or the
applicable Special Servicer after the Closing Date, the Seller shall deliver to
the Trustee or the applicable Special Servicer, as applicable, the powers of
attorney described in the prior sentence in form and substance reasonably
acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all the
annual fees of each Rating Agency allocable to the Mortgage Loans.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of
California. Seller has conducted and is conducting its business so
as to comply in all material respects with all applicable statutes
and regulations of regulatory bodies or agencies having jurisdiction
over it, except where the failure so to comply would not have a
materially adverse effect on the performance by Seller of this
Agreement, and there is no charge, action, suit or proceeding before
or by any court, regulatory authority or governmental agency or body
pending or, to the knowledge of Seller, threatened, which is
reasonably likely to materially and adversely affect the performance
by Seller of this Agreement or the consummation of transactions
contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans owned by it and to
execute and deliver this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith) and to
perform all transactions of Seller contemplated by this Agreement
(and all agreements and documents executed and delivered by Seller
in connection herewith). Seller has duly authorized the execution,
delivery and performance of this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith),
and has duly executed and delivered this Agreement (and all
agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, fraudulent
transfer, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law)
and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or
result in a breach of any of the terms, conditions or provisions of
Seller's articles or certificate of incorporation and bylaws or
similar type organizational documents, as applicable; (B) conflict
with, result in a breach of, or constitute a default or result in an
acceleration under, any agreement or instrument to which Seller is
now a party or by which it (or any of its properties) is bound if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (D) result
in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations
under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); or (E) result in the
creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its
duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith),
or materially impair the ability of Depositor to realize on the
Mortgage Loans owned by Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will not cause Seller to become insolvent and (2) is not intended by
Seller to hinder, delay or defraud any of its present or future
creditors. After giving effect to its transfer of the Mortgage
Loans, as provided herein, the value of Seller's assets, either
taken at their present fair saleable value or at fair valuation,
will exceed the amount of Seller's debts and obligations, including
contingent and unliquidated debts and obligations of Seller, and
Seller will not be left with unreasonably small assets or capital
with which to engage in and conduct its business. Seller does not
intend to, and does not believe that it will, incur debts or
obligations beyond its ability to pay such debts and obligations as
they mature. No proceedings looking toward liquidation, dissolution
or bankruptcy of Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over
Seller is required for (A) Seller's execution, delivery and
performance of this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith), (B) Seller's
transfer and assignment of the Mortgage Loans, or (C) the
consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or, to the extent so required, such
consent, approval, authorization, order, registration, filing or
notice has been obtained, made or given (as applicable), except for
the filing or recording of assignments and other Mortgage Loan
Documents contemplated by the terms of this Agreement and except
that Seller may not be duly qualified to transact business as a
foreign corporation or licensed in one or more states if such
qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is receiving new value. The consideration received by Seller upon
the sale of the Mortgage Loans owned by it constitutes at least fair
consideration and reasonably equivalent value for the Mortgage
Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which
are reasonably likely to draw into question the validity of this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or which, either in any one instance
or in the aggregate, are reasonably likely to materially impair the
ability of Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this Agreement (and each agreement or document executed and
delivered by Seller in connection herewith) is in the ordinary
course of business of Seller and Seller's transfer, assignment and
conveyance of the Mortgage Loans pursuant to this Agreement are not
subject to the bulk transfer or similar statutory provisions in
effect in any applicable jurisdiction. The Mortgage Loans do not
constitute all or substantially all of Seller's assets.
(x) Seller has not dealt with any Person that may be entitled,
by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to
Depositor hereunder except for (A) the reimbursement of expenses as
described herein or otherwise in connection with the transactions
described in Section 2 hereof and (B) the commissions or
compensation owed to the Underwriters or the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of
its properties) is bound which breach or default would materially
and adversely affect the ability of Seller to perform its
obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit
A hereto, subject to the exceptions to such representations and
warranties set forth on Schedule V hereto, are true and correct in
all material respects as of the date hereof with respect to the
Mortgage Loans identified on Schedule II.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(subject to exceptions disclosed at such time) (references therein to "Closing
Date" being deemed to be references to the "date of substitution" and references
therein to "Cut-off Date" being deemed to be references to the "most recent due
date for the subject Replacement Mortgage Loan on or before the date of
substitution"). From and after the date of substitution, each Replacement
Mortgage Loan, if any, shall be deemed to constitute a "Mortgage Loan" hereunder
for all purposes.
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans, as of the date
hereof in Section 6(a)(xii) or as of the Closing Date pursuant to Section
4(b)(iii) (in either case, subject to the exceptions to such representations and
warranties set forth in the Schedule V) or with respect to any Replacement
Mortgage Loan, as of the date of substitution pursuant to Section 6(b) (in any
such case, a "Breach"), or receives notice that (a) any document required to be
included in the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its designee's) possession within the time period required herein
or (b) such document has not been properly executed or is otherwise defective on
its face (clause (a) and clause (b) each, a "Defect" (which term shall include
the "Defects" detailed in the immediately following paragraph) in the related
Mortgage File), and if such Breach or Defect, as the case may be, materially and
adversely affects or is deemed hereby to materially and adversely affect, the
value of the related Mortgage Loan or any successor REO Loan or the interests of
any class of Certificateholders (any Breach or Defect that materially and
adversely affects the value of the related Mortgage Loan or the interests of any
class of Certificateholders, a "Material Breach" or a "Material Defect",
respectively), then the Seller shall, upon written request of Depositor, the
Trustee, the applicable Master Servicer or the applicable Special Servicer, not
later than 90 days after the receipt by Seller of such written request (subject
to the second succeeding paragraph, the "Initial Resolution Period"): (i) cure
such Material Breach or Material Defect, as the case may be, in all material
respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,
in accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the applicable Collection
Account any Substitution Shortfall Amount (as defined in the Pooling and
Servicing Agreement) in connection therewith; provided, however, that if (i)
such Material Breach or Material Defect is capable of being cured but not within
the Initial Resolution Period, (ii) such Material Breach or Material Defect does
not cause the related Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code), (iii) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the Rating
Agencies, the applicable Master Servicer, the applicable Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90-day period, then Seller shall have an
additional 90 days to cure such Material Defect or Material Breach. If any
Breach pertains to representation 39 set forth on Exhibit A hereto, that the
related Mortgage Loan Documents require the related Borrower to bear the
reasonable costs and expenses associated with defeasance or assumption of the
Mortgage Loan, then Seller shall cure such Breach within the Initial Resolution
Period by reimbursing the Trust Fund (by wire transfer of immediately available
funds) the reasonable amount of any such costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Borrower; provided, however, that in the event any such costs and
expenses exceed $10,000, Seller shall have the option to either repurchase the
related Mortgage Loan at the applicable Purchase Price, replace such Mortgage
Loan and pay any applicable Substitution Shortfall Amount or pay such costs and
expenses. Except as provided in the proviso to the immediately preceding
sentence, Seller shall remit the amount of such costs and expenses and upon its
making such remittance, Seller shall be deemed to have cured such Breach in all
respects. Provided such payment is made, the second preceding sentence describes
the sole remedy available to the Certificateholders and the Trustee on their
behalf regarding any such Breach, and Seller shall not be obligated to
repurchase, substitute or otherwise cure such Breach under any circumstances.
With respect to any repurchase of a Mortgage Loan hereunder or any substitution
of one or more Qualified Substitute Mortgage Loans for a Mortgage Loan
hereunder, (A) no such substitution may be made in any calendar month after the
Determination Date for such month; (B) scheduled payments of principal and
interest due with respect to the Qualified Substitute Mortgage Loan(s) after the
month of substitution, and scheduled payments of principal and interest due with
respect to each Mortgage Loan being repurchased or replaced after the related
Cut-off Date and received by the applicable Master Servicer or the applicable
Special Servicer on behalf of the Trust on or prior to the related date of
repurchase or substitution, shall be part of the Trust Fund; and (C) scheduled
payments of principal and interest due with respect to each such Qualified
Substitute Mortgage Loan on or prior to the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust after the related date of repurchase or substitution, shall not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting the related
repurchase or substitution in the place of Seller) shall be entitled to receive
such payments promptly following receipt by the applicable Master Servicer or
the applicable Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (i) of the definition of
Mortgage File in Section 3; (d) the absence from the Mortgage File of any
intervening assignments required to create an effective assignment to the
Trustee on behalf of the Trust, unless there is included in the Mortgage File a
certified copy of the intervening assignment as recorded or as sent for
recordation, together with a certificate stating that the original intervening
assignment was sent for recordation, or a copy of the intervening assignment and
the related recording information; or (e) the absence from the Mortgage File of
any required original letter of credit (unless such original has been delivered
to the applicable Master Servicer and copy thereof is part of the Mortgage
File), provided that such Defect may be cured by any substitute letter of credit
or cash reserve on behalf of the related Borrower; or (f) the absence from the
Mortgage File of the original or a copy of any required ground lease.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless the Crossed Mortgage Loan Repurchase Criteria would be
satisfied if Seller were to repurchase or substitute for only the affected
Crossed Mortgage Loans as to which a Material Breach or Material Defect had
occurred without regard to this paragraph, and in the case of either such
repurchase or substitution, all of the other requirements set forth in the
Pooling and Servicing Agreement applicable to a repurchase or substitution, as
the case may be, would be so satisfied. In the event that one or more of such
other Crossed Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase
Criteria, Seller may elect either to repurchase or substitute for only the
affected Crossed Mortgage Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Mortgage Loans in the
related Mortgage Group. Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Mortgage Loan Repurchase Criteria have been satisfied, so long as
the scope and cost of such Appraisal has been approved by Seller (such approval
not to be unreasonably withheld). For purposes of this paragraph, a "Mortgage
Group" is any group of Mortgage Loans identified as a Mortgage Group on Schedule
III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the entire Mortgage Loan if the
affected Mortgaged Property may, pursuant to the partial release provisions in
the related Mortgage Loan Documents, be released and the Mortgaged Property
remaining after such release satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) Seller provides an opinion of counsel to the
effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be paid) the applicable release price required under the Mortgage Loan
Documents and, to the extent not reimbursable out of the release price pursuant
to the related Mortgage Loan Documents, any additional amounts necessary to
cover all reasonable out-of-pocket expenses reasonably incurred by the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Trust Fund in connection therewith, including any unreimbursed advances and
interest thereon made with respect to the Mortgaged Property that is being
released and (iii) such cure by release of such Mortgaged Property is effected
within the time periods specified for cure of a Material Breach or Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, the Mortgage File(s) for the related Qualified Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and Servicer File
(and all other documents pertaining to such Mortgage Loan possessed by the
Depositor or the Trustee, as applicable, or on its behalf, but excluding any
draft documents, attorney/client privileged communications and documents
prepared by the Depositor or the Trustee (or by the Master Servicer or the
Special Servicer on behalf of the Trust), as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in Seller the legal and beneficial
ownership of such Mortgage Loan (including any property acquired in respect
thereof or proceeds of any insurance policy with respect thereto) and the
related Mortgage Loan Documents and shall deliver to Seller any escrow payments
and reserve funds held by it, or on its behalf, with respect to such repurchased
or replaced Mortgage Loan.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted.
Any reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (39) set forth on Exhibit A hereto unless the Seller
elects to repurchase or substitute for such Mortgage Loan in accordance with the
second paragraph of Section 7. The Seller shall pay all reasonable costs and
expenses associated with a defeasance of a Mortgage Loan to the extent such
costs and expenses have not been paid by the related Borrower and such Borrower
is not required to pay them under the terms of the related Mortgage Loan
Documents in effect on or before the Closing Date, the payment of which fees
shall constitute the sole remedy of any breach by a Seller of representation
(39) set forth on Exhibit A hereto unless the Seller elects to repurchase or
substitute for such Mortgage Loan in accordance with the second paragraph of
Section 7.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Depositor,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 13 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees and expenses incurred
by the Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (212)
743-4756 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department,
Telecopy No.: (000) 000-0000), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at GMAC Commercial
Mortgage Corporation, 000 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxxx X. Xxxxxxx, Telecopy No.: (000) 000-0000, or such other address or
telecopy number as may be designated by Seller to Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and, permitted assigns and nothing expressed in this Agreement is intended or
shall be construed to give any other Person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
Persons and for the benefit of no other Person; it being understood that the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder; provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule
or that constitute Replacement Mortgage Loans, and all distributions
with respect thereto payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above payable after the Cut-off
Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Depositor or its assignee, 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 and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
GMAC COMMERCIAL MORTGAGE CORPORATION.,
as Seller
By:
------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
------------------------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of November 1, 2005, between GMAC Commercial Mortgage Corporation. (the
"Seller") and Credit Suisse First Boston Mortgage Securities Corp (the
"Depositor"). Capitalized terms used herein without definition have the meanings
given them in or by reference in the Agreement or, if not defined in the
Agreement, in the Pooling and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a "CBA
A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated October 26, 2005, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
issued in multiple classes.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means November 9, 2005.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in November 2005 (or with
respect to Mortgage Loans which had closing/funding dates in November 2005, the
respective closing/funding dates of such Mortgage Loans).
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Offering Circular" means the confidential offering circular dated
October 26, 2005, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
November 1, 2005, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated October 14, 2005, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-121904).
"Prospectus Supplement" means the Prospectus Supplement, dated
October 26, 2005, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-3, Class A-4, Class A-1-A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3.
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse First Boston LLC, GMAC Commercial
Holding Capital Markets Corp., Bank of America Securities LLC, Deutsche Bank
Securities Inc. and Wachovia Capital Markets, LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 26, 2005, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[see attached]
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2005-C5
# Crossed Property Name Address
----------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center 2 North through 00 Xxxxx Xxxxxxx Xxxxxx
5 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
7 Silver Portfolio-Kimco Various
11 Valley Forge Office Center 530 and 000 Xxxxxxxxxx Xxxx
13 Centergy Office 00 Xxxxx Xxxxxx Xxxxxxxxx
19 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North Various
25 Saddle Creek Apartments 00000 Xxxxxxxx Xxxxx
28 Ventana Apartments 00000 Xxxxxxx Xxxx
00 Xxxxxxx Xxxxxx 000 Xxxxx 00 Xxxxx
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxx 1201 West Northmoor
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx 0000 Xxxxxxxx Xxxx
42 Polo Club 00000 Xxxx Xxxx Xxxxx
00 Xxxxx Xxx Apartments 000 Xxxxx Xxxxxx Xxxxxx
49 Hilton Suites Anaheim 000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx
53 Leafstone Apartments 10100 Xxxxx Xxxxxx Xxxx
00 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxx
56 The Ashford at Stone Ridge 0000 Xxxx Xxxxxx Xxxx
59 Plaza at Xxxxxxxx Centre 5340 - 0000 Xxxx Xxxxxxxx Xxxxxxxxx
60 Xxxxxxxxx Plaza 000 Xxxx Xxxxx Xxxxx Xxxx
00 Xxxxx Xxxxx Xxxxxxxxxx 0000 Xxx Xxxxxxxx Mill Road
62 La Habra Business Center and Tuff Guy Storage 0000-0000 Xxxxx Xxxxxxx Xxxxxx
65 Topanga Portfolio Various
68 Atrium Office Park 000-000 Xxxxxxxxx 00xx Xxxxxx
72 Grande Apartments 000 Xxxx Xxxxxx Xxxxxx
00 Xxxxxxx - Xxxxxxxxxxx Medical Center 000 Xxxxx Xxxx Xxxxxx Xxxx
81 Xxxxxx Canyon Office Building 0000 Xxxxxx Xxxxxx Xxxx
84 Residence Inn - Franklin 0 Xxxxx Xxxxxxx
00 Xxxxxxx Xxxx Xxxxx 0000 Xxxxxx Xxxxx
90 Residence Inn by Xxxxxxxx - Xxxx 00000 Xxxxxxx Xxxxx
93 Residence Inn by Marriott - Weston 0000 Xxxxxx Xxxx
94 Main Place Shopping Center 0000 Xxxxx Xxxx Xxxxxx
111 Edinburg Regional Medical Plaza I 0000 Xxxxx Xxxxx Xxxx
000 Xxxxx Xxxxx Xxxxxx xx Xxxxxxxx - Xxxxxxx 00000 High Tech Avenue
114 Xxxxx XX Portfolio (Quail and Greentree) Various
000 Xxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxx
119 Tempe Xx. Xxxx'x Xxxxxx Xxxxxxxx 0000 Xxxxx Xxxx Xxxxxx
122 Springhill Suites - Southfield 00000 Xxxxxxxxxxxx Xxxxxxx
123 North Rivers Business Center 0000 Xxxxxxxxxx Xxxxxxxxx
130 1120 Nasa 0000 Xxxx Xxxx Xxx
000 Xxxxx Xxxx 0000 Xxxxxxxx Xxxxx
132 Redbird Village 0000 Xxxx Xxxx Xxxxxx Xxxx
136 Xxxxxxx Xxxxxxxx Retail Various
000 XXX Xxxxxxx Xxxxxxxx X 0000 Xxx Xxxx
000 Xxxxxxxxx by Marriott - Grand Rapids Airport 0000 00xx Xxxxxx Xxxxxxxxx
142 Chefalo Self Storage 00000 Xxxxxxxxxx Xxxxxxxxx
000 Xxxxxxxxx Inn by Marriott - Fort Xxxxx 0000 Xxxxxxx Xxxxxxx
000 Xxxxxxxxx (Xxxxxxxx, TX) 0000 Xxxx Xxxxx Xxxxxxx Xxxxxxxxx
154 West Oxmoor Tower 00 Xxxx Xxxxxx Xxxx
000 Xxxxxxxxx (Xxxxxxxxxx) 000 Xxxxxxxxx Xxxxx Xxxx
166 Holiday Inn Express - Hialeah 0000 Xxxx 00xx Xxxxxx
167 Walgreens (New Braunfels) 0000 Xxxxx Xxxxxxxx XX-00
000 0000 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx Xxxxx
169 Garden Village Apartments 0000 Xxxxx Xxxxxx Xxxxxx
172 Xxxxxxxxxx El Paso Office 0000 Xxxxxxx Xxxxxxxxx Xxxx
173 Crossroads Plaza 5025 and 0000 Xxxxx Xxxx Xxxxxx Xxxx
177 Lake Crest Plaza 2341 Xxxx Xxxxxxx Parkway
000 Xxxxxxx Xxxxxx Home Center 00000 Xxxxxxx Xxxxxx
187 Congress Professional Center I 0000 Xxxxx Xxxxxxxx Xxxxxx
188 000 Xxxxxxxxxx Xxxx 000 Xxxxxxxxxx Xxxx
000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX Xxxxx 000 and Xxxxx Xxxx
000 0000 Xxxxxxxxx Xxxxxxx 0000 Xxxxxxxxx Xxxxxxx Xxxxx
202 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx 000 Xxxx Xxxxxxxxxxxx Xxxxxxxxx
000 Xxxxxxxxx Xxxx Shopping Center 000-000 Xxxxxxxxx Xxxx
207 Space Savers Self Storage 00000 X.X. Xxxxxxx 00
208 A & M Mobile Home Park 0000 Xxxxxxxxx 000xx Xxxxx
212 Cahuenga Apartments 0000 Xxxxxxxx Xxxxxxxxx
000 XX Xxxxxx 00000 Ventura Boulevard
224 Jefferson Auto Center 00000 Xxxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxx Xxxx Pavilion 000 Xxxxxx Xxxx Xxxxxx
227 Xxxx Drug - Raleigh 0000 Xxxxxxxxx Xxxxx Xxxxx
233 Xxxx Drug - Franklinton 3422 US Xxxxxxx 0
000 Xxxx Xxxx - Xx. Pauls 000 Xxxx Xxxxx Xxxxxx
242 Xxxx- 000 Xxxx Xxxx Xx. 000 Xxxx Xxxx Xxxxxx
000 Xxxx Xxxx - Xxxxx Xxxxxx 0000 Xxxxxxx Xxxxxxx
248 Bluebird Apartments 000 Xxxx Xxxxxx
000 Xxxxx Juliustown 0 Xxxxxxxxxx Xxxx
000 Xxxx Xxxx - Xxxxxxxxxxx 0000 Xxx Xxxxxxx Xxxx
256 Dothan Xxxxx Xxxxx 000 Xxxx Xxxx Xxxx
259 Xxxx Drug - Maxton 106 Xxxxxx Xxxxxx Xxxx, Xx. Drive
277 Hillcrest MHC and Colonial Estates MHC 0000 Xxxxxxxxx Xxxx and 0000 Xxxxxx Xxxxxx
(TABLE CONTINUED)
Zip
# Crossed Property Name City State Code
-----------------------------------------------------------------------------------------------------------------------------
0 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx XX 00000
5 000 Xxxx Xxxxxx Xxx Xxxx XX 00000
7 Silver Portfolio-Kimco Various Various Various
00 Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxx XX 00000
00 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
00 Xxxxxxxxxxx Xxxxx Xxxx Xxxxx & Xxxxxxxx Xxxx Xxxxxxxxxx Xxxxx Various Various Various
00 Xxxxxx Xxxxx Xxxxxxxxxx Xxxx XX 00000
00 Xxxxxxx Xxxxxxxxxx Xxx Xxxxxxx XX 00000
00 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxx Xxxxxx XX 00000
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx Xxxxxxx-Xxxxx XX 00000
00 Xxxx Xxxx Xxxxxxxxxx Xxxxx XX 00000
00 Xxxxx Xxx Xxxxxxxxxx Xxxxxx XX 00000
00 Xxxxxx Xxxxxx Xxxxxxx Xxxxxx XX 00000
00 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
00 Xxxxxxx Xxxxxx Xxxx XX 00000
56 The Ashford at Xxxxx Xxxxx Xxxxxxx Xxxx XX 00000
00 Xxxxx xx Xxxxxxxx Xxxxxx Xxxxxx XX 00000
00 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
00 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
62 La Habra Business Center and Tuff Guy Storage Xx Xxxxx XX 00000
65 Topanga Portfolio Various Various Various
00 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000
00 Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxx XX 00000
74 Xxxxxxx - Xxxxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxx Xxxxx XX 00000
00 Xxxxxxxxx Xxx - Xxxxxxxx Xxxxxxxx XX 00000
00 Xxxxxxx Xxxx Xxxxx Xxxxxx XX 00000
90 Residence Inn by Xxxxxxxx - Xxxx Xxxx XX 00000
93 Residence Inn by Marriott - Xxxxxx Xxxxxx XX 00000
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx XxXxxxx XX 00000
000 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx X Xxxxxxxx XX 00000
000 Xxxxx Xxxxx Suites by Marriott - Orlando Xxxxxxx XX 00000
114 Xxxxx XX Portfolio (Quail and Greentree) Various Various Various
000 Xxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxx XX 00000
119 Tempe Xx. Xxxx'x Xxxxxx Xxxxxxxx Xxxxx XX 00000
000 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxx Xxxxxxxxxx XX 00000
000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
130 0000 Xxxx Xxxxxx Xxx XX 00000
000 Xxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxxxxxx Xxxxxx XX 00000
136 Xxxxxxx Xxxxxxxx Retail Various Various Various
000 XXX Xxxxxxx Xxxxxxxx X Xxxxxxx Xxxxx XX 00000
139 Courtyard by Marriott - Grand Rapids Airport Xxxxxxxx XX 00000
000 Xxxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000
145 Fairfield Inn by Marriott - Fort Xxxxx Xxxx Xxxxx XX 00000
153 Walgreens (Missouri, TX) Xxxxxxxx Xxxx XX 00000
000 Xxxx Xxxxxx Xxxxx Xxxxxxxxxx XX 00000
000 Xxxxxxxxx (Xxxxxxxxxx) Xxxxxxxxxx XX 00000
000 Xxxxxxx Xxx Xxxxxxx - Xxxxxxx Xxxxxxx XX 00000
167 Walgreens (New Braunfels) Xxx Xxxxxxxxx XX 00000
168 0000 Xxxxxxxx Xxxx Xxxxxxx XX 00000
000 Xxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
000 Xxxxxxxxxx Xx Xxxx Xxxxxx Xx Xxxx XX 00000
000 Xxxxxxxxxx Xxxxx Xxx Xxxxx XX 00000
000 Xxxx Xxxxx Xxxxx Xxxxxx XX 00000
000 Xxxxxxx Xxxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxxxx Xxxxxx X Xxxx Xxxxxxx XX 00000
188 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000
000 Xxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxx XX 00000
196 0000 Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
202 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx Xxxxx Xxxx XX 00000
000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxxx XX 00000
207 Space Savers Self Storage Daphne AL 36526
000 X & X Xxxxxx Xxxx Xxxx Xxxxxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxx XX 00000
000 XX Xxxxxx Xxxxxx XX 00000
000 Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
225 Osler Xxxxxxx Xxxx Xxxxxxxx Xxxx Xxx XX 00000
000 Xxxx Xxxx - Xxxxxxx Xxxxxxx XX 00000
000 Xxxx Xxxx - Xxxxxxxxxxx Xxxxxxxxxxx XX 00000
000 Xxxx Xxxx - Xx. Xxxxx Xx. Xxxxx XX 00000
242 Xxxx- 000 Xxxx Xxxx Xx. Xxxxxxxxx XX 00000
000 Xxxx Xxxx - Xxxxx Xxxxxx Xxxx'x Xxxxxx XX 00000
000 Xxxxxxxx Xxxxxxxxxx Xx. Xxxx XX 00000
000 Xxxxx Xxxxxxxxxx Xxxxx Xxxxx XX 00000
000 Xxxx Xxxx - Xxxxxxxxxxx Xxxxxxxxxxx XX 00000
000 Xxxxxx Xxxxx Xxxxx Xxxxxx XX 00000
000 Xxxx Xxxx - Xxxxxx Xxxxxx XX 00000
000 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC Vincennes IN 47591
(TABLE CONTINUED)
Interest Net Mortgage Original Cut-off
# Crossed Property Name Rate Rate Balance Balance
----------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center 5.0800% 4.97918% $79,580,000 $79,580,000
5 000 Xxxx Xxxxxx 4.9000% 4.79918% $70,000,000 $70,000,000
7 Silver Portfolio-Kimco 4.9400% 4.83918% $65,000,000 $64,933,333
11 Valley Forge Office Center 5.4300% 5.32918% $44,000,000 $44,000,000
13 Centergy Office 5.5400% 5.43918% $42,000,000 $42,000,000
00 Xxxxxxxxxxx Xxxxx Xxxx Xxxxx & Xxxxxxxx Xxxx Xxxxxxxxxx North 5.5300% 5.49204% $35,000,000 $35,000,000
25 Saddle Creek Apartments 5.1100% 5.00918% $23,500,000 $23,500,000
28 Ventana Apartments 5.0300% 4.92918% $21,600,000 $21,600,000
00 Xxxxxxx Xxxxxx 5.1600% 5.05918% $21,600,000 $21,530,302
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxx 5.4600% 5.35918% $10,250,000 $10,204,714
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx 5.4600% 5.35918% $7,400,000 $7,367,305
42 Polo Club 5.3800% 5.27918% $16,600,000 $16,600,000
00 Xxxxx Xxx Apartments 5.3900% 5.28918% $14,500,000 $14,379,306
49 Hilton Suites Anaheim 5.4100% 5.34358% $13,700,000 $13,700,000
53 Leafstone Apartments 5.2500% 5.14918% $12,900,000 $12,900,000
00 Xxxxxxx Xxxxxx 5.2500% 5.14918% $12,875,000 $12,875,000
00 Xxx Xxxxxxx xx Xxxxx Xxxxx 5.3100% 5.20918% $12,650,000 $12,650,000
59 Plaza at Xxxxxxxx Centre 4.7800% 4.67918% $12,000,000 $11,940,481
00 Xxxxxxxxx Xxxxx 5.1800% 5.07918% $11,880,000 $11,880,000
00 Xxxxx Xxxxx Apartments 5.1900% 5.08918% $11,700,000 $11,700,000
00 Xx Xxxxx Xxxxxxxx Xxxxxx and Tuff Guy Storage 5.3400% 5.23918% $11,500,000 $11,500,000
65 Topanga Portfolio 5.2600% 5.15918% $11,298,000 $11,262,337
68 Atrium Office Park 5.1200% 5.01918% $10,700,000 $10,665,170
72 Grande Apartments 5.5500% 5.44918% $10,300,000 $10,300,000
74 Xxxxxxx - Southpointe Medical Center 4.8900% 4.78918% $10,000,000 $9,965,789
00 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx 5.5200% 5.41918% $8,900,000 $8,900,000
84 Residence Inn - Franklin 5.4700% 5.38978% $8,500,000 $8,450,334
00 Xxxxxxx Xxxx Xxxxx 5.1100% 5.00918% $8,150,000 $8,150,000
90 Residence Inn by Marriott - Novi 5.5000% 5.41793% $8,000,000 $7,953,503
00 Xxxxxxxxx Xxx xx Xxxxxxxx - Xxxxxx 6.0000% 5.91629% $7,600,000 $7,600,000
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx 5.3300% 5.22918% $7,600,000 $7,576,379
000 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx I 5.3000% 5.19918% $6,500,000 $6,486,150
000 Xxxxx Xxxxx Xxxxxx xx Xxxxxxxx - Xxxxxxx 5.3900% 5.29888% $6,200,000 $6,200,000
114 Xxxxx XX Portfolio (Quail and Greentree) 5.3750% 5.27418% $6,120,000 $6,114,056
000 Xxxxx Xxxxxx Apartments 5.0800% 4.97918% $5,979,248 $5,979,248
000 Xxxxx Xx. Luke's Office Building 5.3300% 5.22918% $5,994,000 $5,975,370
000 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxx 5.5000% 5.40608% $5,800,000 $5,757,085
000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx 5.2800% 5.17918% $5,600,000 $5,600,000
130 1120 Nasa 5.4100% 5.30918% $5,300,000 $5,283,818
000 Xxxxx Xxxx 5.0900% 4.98918% $5,250,000 $5,250,000
000 Xxxxxxx Xxxxxxx 5.5000% 5.39918% $5,240,000 $5,235,065
136 Xxxxxxx Xxxxxxxx Retail 5.4000% 5.29918% $5,000,000 $5,000,000
137 JFK Medical Pavilion I 6.0200% 5.89418% $5,100,000 $4,981,149
139 Courtyard by Marriott - Grand Rapids Airport 6.1200% 6.01918% $5,000,000 $4,953,083
142 Chefalo Self Storage 5.2900% 5.18918% $4,900,000 $4,889,537
000 Xxxxxxxxx Xxx xx Xxxxxxxx - Xxxx Xxxxx 5.3400% 5.23918% $4,700,000 $4,700,000
153 Walgreens (Missouri, TX) 5.3200% 5.21918% $4,447,000 $4,447,000
000 Xxxx Xxxxxx Xxxxx 5.4800% 5.37918% $4,400,000 $4,400,000
000 Xxxxxxxxx (Xxxxxxxxxx) 5.0900% 4.98918% $4,075,000 $4,075,000
166 Holiday Inn Express - Hialeah 5.3900% 5.28918% $4,000,000 $3,982,112
000 Xxxxxxxxx (Xxx Xxxxxxxxx) 5.2900% 5.18918% $3,890,000 $3,890,000
168 8700 Commerce Park 5.2400% 5.13918% $3,870,000 $3,866,116
169 Garden Village Apartments 5.6500% 5.54918% $3,700,000 $3,692,688
172 Xxxxxxxxxx El Paso Office 5.5200% 5.41918% $3,600,000 $3,589,277
000 Xxxxxxxxxx Xxxxx 5.4500% 5.34918% $3,500,000 $3,500,000
000 Xxxx Xxxxx Xxxxx 5.4000% 5.29918% $3,380,000 $3,369,657
000 Xxxxxxx Xxxxxx Home Center 5.1600% 5.05918% $3,040,000 $3,040,000
187 Congress Professional Center I 5.3000% 5.19918% $3,013,000 $3,003,573
188 000 Xxxxxxxxxx Xxxx 4.8300% 4.72918% $3,000,000 $2,992,948
195 Sinking Spring Marketplace 5.5700% 5.46918% $2,800,000 $2,800,000
196 0000 Xxxxxxxxx Xxxxxxx 5.3750% 5.27418% $2,800,000 $2,794,128
202 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx 5.2500% 5.14918% $2,501,950 $2,499,445
000 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxx 5.8750% 5.77418% $2,500,000 $2,495,297
207 Space Savers Self Storage 5.4700% 5.36918% $2,500,000 $2,473,663
000 X & X Xxxxxx Xxxx Xxxx 5.4400% 5.33918% $2,450,000 $2,450,000
212 Cahuenga Apartments 5.0900% 4.98918% $2,385,000 $2,385,000
221 EZ Encino 5.5200% 5.41918% $2,200,000 $2,200,000
224 Jefferson Auto Center 5.4200% 5.31918% $2,100,000 $2,100,000
000 Xxxxx Xxxxxxx Xxxx Pavilion 5.3000% 5.19918% $2,100,000 $2,093,430
000 Xxxx Xxxx - Xxxxxxx 5.2500% 5.14918% $2,084,959 $2,078,363
000 Xxxx Xxxx - Xxxxxxxxxxx 5.2500% 5.14918% $1,905,221 $1,899,194
000 Xxxx Xxxx - Xx. Pauls 5.2500% 5.14918% $1,869,273 $1,863,359
242 Xxxx- 000 Xxxx Xxxx Xx. 5.2500% 5.14918% $1,797,378 $1,795,578
247 Xxxx Drug - Xxxxx Island 5.2500% 5.14918% $1,689,535 $1,684,190
248 Bluebird Apartments 5.6600% 5.55918% $1,660,000 $1,658,498
252 Seven Juliustown 5.4700% 5.36918% $1,600,000 $1,595,180
000 Xxxx Xxxx - Xxxxxxxxxxx 5.2500% 5.14918% $1,567,314 $1,562,356
000 Xxxxxx Xxxxx Xxxxx 5.5400% 5.43918% $1,500,000 $1,496,804
259 Xxxx Drug - Maxton 5.2500% 5.14918% $1,366,007 $1,361,686
000 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC 5.3900% 5.28918% $900,000 $900,000
(TABLE CONTINUED)
Rem. Orig
Term to Maturity Amort.
# Crossed Property Name Maturity Date ARD Term
-----------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center 360 8/1/2015 N/A 360
5 000 Xxxx Xxxxxx Interest Only 10/1/2012 N/A Interest Only
7 Silver Portfolio-Kimco 358 9/1/2015 N/A 360
11 Valley Forge Office Center Interest Only 9/1/2010 N/A Interest Only
13 Centergy Office 360 12/1/2014 N/A 360
19 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North 300 9/1/2015 N/A 300
25 Saddle Creek Apartments 360 9/1/2015 N/A 360
28 Ventana Apartments 360 9/1/2015 N/A 360
00 Xxxxxxx Xxxxxx 357 8/1/2015 N/A 360
38 Independence Village - Peoria 297 9/1/2015 N/A 300
00 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx 297 9/1/2015 N/A 300
42 Polo Club 360 11/1/2015 N/A 360
45 Cedar Run Apartments 352 3/1/2015 N/A 360
49 Hilton Suites Anaheim 300 7/1/2010 N/A 300
53 Leafstone Apartments 360 8/1/2015 N/A 360
00 Xxxxxxx Xxxxxx 360 9/1/2015 N/A 360
56 The Ashford at Stone Ridge 360 10/1/2010 N/A 360
59 Plaza at Xxxxxxxx Centre 297 8/1/2015 N/A 300
60 Xxxxxxxxx Plaza 360 8/1/2015 N/A 360
00 Xxxxx Xxxxx Xxxxxxxxxx 000 10/1/2015 N/A 360
62 La Habra Business Center and Tuff Guy Storage 360 10/1/2015 N/A 360
65 Topanga Portfolio 357 8/1/2015 N/A 360
68 Atrium Office Park 357 8/1/2015 N/A 360
72 Grande Apartments 324 2/1/2012 N/A 324
74 Xxxxxxx - Southpointe Medical Center 357 8/1/2015 N/A 360
81 Xxxxxx Canyon Office Building Interest Only 8/1/2010 N/A Interest Only
84 Residence Inn - Franklin 296 1/1/2011 N/A 300
86 Country Club Plaza 360 8/1/2015 N/A 360
90 Residence Inn by Marriott - Novi 296 7/1/2015 N/A 300
93 Residence Inn by Marriott - Weston 300 5/1/2015 N/A 300
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx 357 8/1/2015 N/A 360
111 Edinburg Regional Medical Plaza I 358 9/1/2015 N/A 360
000 Xxxxx Xxxxx Xxxxxx xx Xxxxxxxx - Xxxxxxx 000 8/1/2015 N/A 300
114 Xxxxx XX Portfolio (Quail and Greentree) 359 10/1/2015 N/A 360
000 Xxxxx Xxxxxx Xxxxxxxxxx 000 10/1/2015 N/A 360
119 Tempe St. Luke's Office Building 357 8/1/2015 N/A 360
122 Springhill Suites - Southfield 295 6/1/2015 N/A 300
123 North Rivers Business Center 360 8/1/2015 N/A 360
130 1120 Nasa 357 8/1/2015 N/A 360
131 Tower Park 360 8/1/2010 N/A 360
132 Redbird Village 359 10/1/2015 N/A 360
136 Xxxxxxx Xxxxxxxx Retail 360 10/1/2015 N/A 360
137 JFK Medical Pavilion I 336 11/1/2013 N/A 360
139 Courtyard by Marriott - Grand Rapids Airport 293 4/1/2015 N/A 300
142 Chefalo Self Storage 358 9/1/2015 N/A 360
145 Fairfield Inn by Marriott - Fort Xxxxx 300 9/1/2015 N/A 300
153 Walgreens (Missouri, TX) 360 10/1/2015 N/A 360
154 West Oxmoor Tower 360 2/1/2015 N/A 360
161 Walgreens (Statesboro) 360 9/1/2015 N/A 360
166 Holiday Inn Express - Hialeah 297 8/1/2015 N/A 300
167 Walgreens (New Braunfels) 360 8/1/2015 N/A 360
168 8700 Commerce Park 359 10/1/2015 N/A 360
169 Garden Village Apartments 358 9/1/2020 N/A 360
172 Xxxxxxxxxx El Paso Office 357 8/1/2015 N/A 360
000 Xxxxxxxxxx Xxxxx 360 9/1/2015 N/A 360
000 Xxxx Xxxxx Xxxxx 357 8/1/2015 N/A 360
000 Xxxxxxx Xxxxxx Home Center 360 8/1/2015 N/A 360
187 Congress Professional Center I 357 8/1/2015 N/A 360
188 213 Summerhill Road 358 9/1/2015 N/A 360
195 Sinking Spring Marketplace 360 9/1/2015 N/A 360
196 5450 Northwest Central 358 9/1/2015 N/A 360
202 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx 359 10/1/2015 N/A 360
000 Xxxxxxxxx Xxxx Shopping Center 358 9/1/2015 N/A 360
207 Space Savers Self Storage 177 8/1/2020 N/A 180
208 A & M Mobile Home Park 360 10/1/2010 N/A 360
212 Cahuenga Apartments 360 7/1/2015 N/A 360
221 EZ Encino 360 9/1/2015 N/A 360
224 Jefferson Auto Center 360 10/1/2015 N/A 360
225 Osler Medical Arts Pavilion 357 8/1/2015 N/A 360
227 Xxxx Drug - Raleigh 357 8/1/2015 N/A 360
233 Xxxx Drug - Franklinton 357 8/1/2015 N/A 360
238 Xxxx Drug - St. Pauls 357 8/1/2015 N/A 360
242 Xxxx- 000 Xxxx Xxxx Xx. 359 10/1/2015 N/A 360
247 Xxxx Drug - Xxxxx Island 357 8/1/2015 N/A 360
248 Bluebird Apartments 359 10/1/2015 N/A 360
252 Seven Juliustown 357 8/1/2015 N/A 360
253 Xxxx Drug - Summerville 357 8/1/2015 N/A 360
000 Xxxxxx Xxxxx Xxxxx 000 10/1/2015 N/A 240
259 Xxxx Drug - Maxton 357 8/1/2015 N/A 360
277 Hillcrest MHC and Colonial Estates MHC 360 9/1/2015 N/A 360
(TABLE CONTINUED)
Units/
Rem. Sq. Ft./
Amort. Monthly Rooms/
# Crossed Property Name Term Payment Pads
---------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center 360 $431,102 458,331
5 000 Xxxx Xxxxxx Interest Only $289,803 607,172
7 Silver Portfolio-Kimco 358 $334,292 310,610
1 Valley Forge Office Center Interest Only $201,865 258,345
3 Centergy Office 360 $239,527 253,251
9 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North 300 $215,558 504
5 Saddle Creek Apartments 360 $127,738 400
8 Ventana Apartments 360 $116,350 390
0 Xxxxxxx Xxxxxx 357 $118,075 72,948
0 Xxxxxxxxxxxx Xxxxxxx - Xxxxxx 297 $62,699 158
0 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx 297 $45,266 156
2 Polo Club 360 $93,007 281
5 Cedar Run Apartments 352 $81,331 384
9 Hilton Suites Anaheim 300 $83,395 230
3 Leafstone Apartments 360 $71,234 232
0 Xxxxxxx Xxxxxx 360 $71,096 128,717
6 The Ashford at Stone Ridge 360 $70,325 248
9 Plaza at Xxxxxxxx Centre 297 $68,621 108,914
0 Xxxxxxxxx Xxxxx 360 $65,088 105,366
0 Xxxxx Xxxxx Xxxxxxxxxx 000 $64,174 213
2 La Habra Business Center and Tuff Guy Storage 360 $64,146 152,553
5 Topanga Portfolio 357 $62,458 22,277
8 Atrium Office Park 357 $58,227 98,511
2 Grande Apartments 324 $61,407 119
4 Xxxxxxx - Southpointe Medical Center 357 $53,012 47,020
1 Xxxxxx Canyon Office Building Interest Only $41,509 57,747
4 Residence Inn - Franklin 296 $52,045 108
6 Country Club Plaza 360 $44,301 51,652
0 Residence Inn by Marriott - Novi 296 $49,127 107
3 Residence Inn by Xxxxxxxx - Xxxxxx 000 $48,967 100
0 Xxxx Xxxxx Xxxxxxxx Xxxxxx 357 $42,345 170,530
00 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx I 358 $36,095 52,068
00 Xxxxx Xxxxx Xxxxxx xx Xxxxxxxx - Xxxxxxx 000 $37,667 105
14 Xxxxx XX Portfolio (Quail and Greentree) 359 $34,270 369
00 Xxxxx Xxxxxx Xxxxxxxxxx 000 $32,391 184
19 Tempe St. Luke's Office Building 357 $33,397 59,808
00 Xxxxxxxxxx Xxxxxx - Xxxxxxxxxx 000 $35,617 84
23 North Rivers Business Center 360 $31,028 77,333
30 1120 Nasa 357 $29,794 79,434
00 Xxxxx Xxxx 000 x00,000 000
00 Xxxxxxx Xxxxxxx 359 $29,752 85,295
36 Xxxxxxx Xxxxxxxx Retail 360 $28,077 12,675
37 JFK Medical Pavilion I 336 $30,643 25,565
39 Courtyard by Marriott - Grand Rapids Airport 293 $32,583 84
42 Chefalo Self Storage 358 $27,180 61,220
00 Xxxxxxxxx Xxx xx Xxxxxxxx - Xxxx Xxxxx 300 $28,415 104
53 Walgreens (Missouri, TX) 360 $24,750 14,820
54 West Oxmoor Tower 360 $24,928 86,770
61 Walgreens (Statesboro) 360 $22,100 14,820
66 Holiday Inn Express - Hialeah 297 $24,301 144
67 Walgreens (New Braunfels) 360 $21,577 14,820
68 8700 Commerce Park 359 $21,346 77,203
69 Garden Village Apartments 358 $21,358 163
72 Xxxxxxxxxx El Paso Office 357 $20,486 71,409
00 Xxxxxxxxxx Xxxxx 360 $19,763 11,919
00 Xxxx Xxxxx Xxxxx 357 $18,980 22,149
00 Xxxxxxx Xxxxxx Home Center 360 $16,618 31,760
87 Congress Professional Center I 357 $16,731 17,738
88 000 Xxxxxxxxxx Xxxx 358 $15,794 19,016
95 Sinking Spring Marketplace 360 $16,021 18,260
96 0000 Xxxxxxxxx Xxxxxxx 358 $15,679 56,350
02 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx 359 $13,816 11,562
00 Xxxxxxxxx Xxxx Shopping Center 358 $14,788 26,774
07 Space Savers Self Storage 177 $20,387 49,450
08 A & M Mobile Home Park 360 $13,819 142
12 Cahuenga Apartments 360 $12,935 51
21 EZ Encino 360 $12,519 8,137
24 Jefferson Auto Center 360 $11,818 17,111
25 Osler Medical Arts Pavilion 357 $11,661 17,790
00 Xxxx Xxxx - Xxxxxxx 000 $11,513 11,628
33 Xxxx Drug - Franklinton 357 $10,521 11,004
00 Xxxx Xxxx - Xx. Pauls 357 $10,322 9,804
42 Xxxx- 000 Xxxx Xxxx Xx. 359 $9,925 8,715
47 Xxxx Drug - Xxxxx Island 357 $9,330 9,804
48 Bluebird Apartments 359 $9,593 31
52 Seven Juliustown 357 $9,055 17,881
53 Xxxx Drug - Summerville 357 $8,655 9,804
00 Xxxxxx Xxxxx Xxxxx 239 $10,352 23,674
59 Xxxx Drug - Maxton 357 $7,543 9,804
00 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC 360 $5,048 70
(TABLE CONTINUED)
Interest Calculation Administration
# Crossed Property Name (30/360 / Actual/360) Fees Due Date
------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center Actual/360 0.10082% 1
5 000 Xxxx Xxxxxx Actual/360 0.10082% 1
7 Silver Portfolio-Kimco Actual/360 0.10082% 1
1 Valley Forge Office Center Actual/360 0.10082% 1
3 Centergy Office Actual/360 0.10082% 1
9 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North Actual/360 0.03796% 1
5 Saddle Creek Apartments Actual/360 0.10082% 1
8 Ventana Apartments Actual/360 0.10082% 1
0 Xxxxxxx Xxxxxx Actual/360 0.10082% 1
8 Independence Village - Peoria Actual/360 0.10082% 1
0 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx Actual/360 0.10082% 1
2 Polo Club Actual/360 0.10082% 1
5 Cedar Run Apartments Actual/360 0.10082% 1
9 Hilton Suites Anaheim Actual/360 0.06642% 1
3 Leafstone Apartments Actual/360 0.10082% 1
0 Xxxxxxx Xxxxxx Actual/360 0.10082% 1
6 The Ashford at Stone Ridge Actual/360 0.10082% 1
9 Plaza at Xxxxxxxx Centre Actual/360 0.10082% 1
0 Xxxxxxxxx Plaza Actual/360 0.10082% 1
0 Xxxxx Xxxxx Xxxxxxxxxx Xxxxxx/000 0.10082% 1
2 La Habra Business Center and Tuff Guy Storage Actual/360 0.10082% 1
5 Topanga Portfolio Actual/360 0.10082% 1
8 Atrium Office Park Actual/360 0.10082% 1
2 Grande Apartments Actual/360 0.10082% 1
4 Xxxxxxx - Southpointe Medical Center Actual/360 0.10082% 1
1 Xxxxxx Canyon Office Building Actual/360 0.10082% 1
4 Residence Inn - Franklin Actual/360 0.08022% 1
0 Xxxxxxx Xxxx Xxxxx Actual/360 0.10082% 1
0 Residence Inn by Marriott - Novi Actual/360 0.08207% 1
3 Residence Inn by Marriott - Weston Actual/360 0.08371% 1
0 Xxxx Xxxxx Xxxxxxxx Xxxxxx Actual/360 0.10082% 1
00 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx I Actual/360 0.10082% 1
00 Xxxxx Xxxxx Xxxxxx xx Xxxxxxxx - Xxxxxxx Actual/360 0.09112% 1
14 Xxxxx XX Portfolio (Quail and Greentree) Actual/360 0.10082% 1
17 Quail Pointe Apartments Actual/360 0.10082% 1
19 Tempe St. Luke's Office Building Actual/360 0.10082% 1
22 Springhill Suites - Southfield Actual/360 0.09392% 1
23 North Rivers Business Center Actual/360 0.10082% 1
30 1120 Nasa Actual/360 0.10082% 1
31 Tower Park Actual/360 0.10082% 1
32 Redbird Village Actual/360 0.10082% 1
36 Xxxxxxx Xxxxxxxx Retail Actual/360 0.10082% 1
37 JFK Medical Pavilion I Actual/360 0.12582% 1
39 Courtyard by Marriott - Grand Rapids Airport Actual/360 0.10082% 1
42 Chefalo Self Storage Actual/360 0.10082% 1
00 Xxxxxxxxx Xxx xx Xxxxxxxx - Xxxx Xxxxx Actual/360 0.10082% 1
53 Walgreens (Missouri, TX) Actual/360 0.10082% 1
54 West Oxmoor Tower Actual/360 0.10082% 1
61 Walgreens (Statesboro) Actual/360 0.10082% 1
66 Holiday Inn Express - Hialeah Actual/360 0.10082% 1
67 Walgreens (New Braunfels) Actual/360 0.10082% 1
68 0000 Xxxxxxxx Xxxx Actual/360 0.10082% 1
69 Garden Village Apartments Actual/360 0.10082% 1
72 Xxxxxxxxxx El Paso Office Actual/360 0.10082% 1
00 Xxxxxxxxxx Xxxxx Actual/360 0.10082% 1
00 Xxxx Xxxxx Xxxxx Actual/360 0.10082% 1
00 Xxxxxxx Xxxxxx Home Center Actual/360 0.10082% 1
87 Congress Professional Center I Actual/360 0.10082% 1
88 000 Xxxxxxxxxx Xxxx Actual/360 0.10082% 1
95 Sinking Spring Marketplace Actual/360 0.10082% 1
96 0000 Xxxxxxxxx Xxxxxxx Actual/360 0.10082% 1
02 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx Actual/360 0.10082% 1
00 Xxxxxxxxx Xxxx Xxxxxxxx Xxxxxx Actual/360 0.10082% 1
07 Space Savers Self Storage Actual/360 0.10082% 1
08 A & M Mobile Home Park Actual/360 0.10082% 1
12 Cahuenga Apartments Actual/360 0.10082% 1
21 EZ Encino Actual/360 0.10082% 1
24 Jefferson Auto Center Actual/360 0.10082% 1
25 Osler Medical Arts Pavilion Actual/360 0.10082% 1
27 Xxxx Drug - Raleigh Actual/360 0.10082% 1
33 Xxxx Drug - Franklinton Actual/360 0.10082% 1
00 Xxxx Xxxx - Xx. Pauls Actual/360 0.10082% 1
42 Xxxx- 000 Xxxx Xxxx Xx. Actual/360 0.10082% 1
47 Xxxx Drug - Xxxxx Island Actual/360 0.10082% 1
48 Bluebird Apartments Actual/360 0.10082% 1
52 Seven Juliustown Actual/360 0.10082% 1
53 Xxxx Drug - Summerville Actual/360 0.10082% 1
00 Xxxxxx Xxxxx Xxxxx Actual/360 0.10082% 1
59 Xxxx Drug - Maxton Actual/360 0.10082% 1
00 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC Actual/360 0.10082% 1
(TABLE CONTINUED)
Earthquake Environmental
# Crossed Property Name ARD (Y/N) Defeasance Insurance Insurance
------------------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center No Yes N/A No
5 000 Xxxx Xxxxxx No Yes N/A No
7 Silver Portfolio-Kimco No Yes N/A No
1 Valley Forge Office Center No Yes N/A No
3 Centergy Office No Yes N/A No
9 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North No Yes N/A No
5 Saddle Creek Apartments No Yes N/A No
8 Ventana Apartments No Yes X/X Xx
0 Xxxxxxx Xxxxxx No Yes N/A No
8 Independence Village - Peoria No Yes N/A No
9 Independence Village - Winston Salem No Yes N/A No
2 Polo Club No Yes X/X Xx
0 Xxxxx Xxx Xxxxxxxxxx Xx Yes N/A No
9 Hilton Suites Anaheim No Yes N/A No
3 Leafstone Apartments No Yes X/X Xx
0 Xxxxxxx Xxxxxx No Yes N/A No
6 The Ashford at Stone Ridge No Yes N/A No
9 Plaza at Xxxxxxxx Centre No Yes N/A No
0 Xxxxxxxxx Plaza No Yes X/X Xx
0 Xxxxx Xxxxx Xxxxxxxxxx Xx Yes N/A No
2 La Habra Business Center and Tuff Guy Storage No Yes N/A No
5 Topanga Portfolio No Yes N/A No
8 Atrium Office Park No Yes N/A No
2 Grande Apartments No Yes N/A No
4 Xxxxxxx - Southpointe Medical Center No Yes N/A No
1 Xxxxxx Canyon Office Building No No N/A No
4 Residence Inn - Franklin No Yes X/X Xx
0 Xxxxxxx Xxxx Xxxxx Xx Yes N/A No
0 Residence Inn by Marriott - Novi No Yes N/A No
3 Residence Inn by Marriott - Weston No Yes N/A No
4 Main Place Shopping Center No Yes N/A No
11 Edinburg Regional Medical Plaza I No Yes N/A No
13 Towne Place Suites by Marriott - Orlando No Yes N/A No
14 Xxxxx XX Portfolio (Quail and Greentree) No Yes X/X Xx
00 Xxxxx Xxxxxx Xxxxxxxxxx Xx Yes N/A No
19 Tempe St. Luke's Office Building No No N/A No
22 Springhill Suites - Southfield No Yes N/A No
23 North Rivers Business Xxxxxx Xx Xx X/X Xx
00 0000 Xxxx No Yes N/A No
00 Xxxxx Xxxx Xx Xx X/X Xx
00 Xxxxxxx Xxxxxxx No Yes N/A No
36 Xxxxxxx Xxxxxxxx Retail No No N/A No
37 JFK Medical Pavilion I No No N/A No
39 Courtyard by Marriott - Grand Rapids Airport No Yes N/A No
42 Chefalo Self Storage No Yes N/A No
45 Fairfield Inn by Marriott - Fort Xxxxx No Yes N/A No
53 Walgreens (Missouri, TX) No Yes N/A No
54 West Oxmoor Tower No Yes N/A No
61 Walgreens (Statesboro) No Yes N/A No
66 Holiday Inn Express - Hialeah No Yes N/A No
67 Walgreens (New Braunfels) Xx Xx X/X Xx
00 0000 Xxxxxxxx Park No Yes N/A No
69 Garden Village Apartments No No N/A No
72 Xxxxxxxxxx El Paso Office No Yes X/X Xx
00 Xxxxxxxxxx Xxxxx Xx Yes X/X Xx
00 Xxxx Xxxxx Xxxxx Xx Yes X/X Xx
00 Xxxxxxx Xxxxxx Home Center No Yes N/A No
87 Congress Professional Center I No Yes N/A No
88 000 Xxxxxxxxxx Xxxx No Yes N/A No
95 Sinking Spring Marketplace No Yes X/X Xx
00 0000 Xxxxxxxxx Central No Yes N/A No
02 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx No Yes N/A No
03 Newbridge Road Shopping Center No Yes N/A No
07 Space Savers Self Storage No Yes N/A No
08 A & M Mobile Home Park No Yes N/A No
12 Cahuenga Apartments No Yes N/A No
21 EZ Encino No Yes N/A No
24 Jefferson Auto Center No No N/A No
25 Osler Medical Arts Pavilion No Yes N/A No
27 Xxxx Drug - Raleigh No Yes N/A No
33 Xxxx Drug - Franklinton No Yes N/A No
38 Xxxx Drug - St. Pauls No Yes N/A No
42 Xxxx- 000 Xxxx Xxxx Xx. No Yes N/A No
47 Xxxx Drug - Xxxxx Island No Yes N/A No
48 Bluebird Apartments No Yes N/A No
52 Seven Juliustown No Yes N/A No
53 Xxxx Drug - Summerville No Yes N/A No
56 Dothan South Plaza No Yes N/A No
59 Xxxx Drug - Maxton No Yes X/X Xx
00 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC No Yes N/A No
(TABLE CONTINUED)
Fee/ Letter of Loan Group
# Crossed Property Name Leasehold Credit (Y/N) #
--------------------------------------------------------------------------------------------------------------------------
4 Xxxxxx Center Fee Yes 1
5 000 Xxxx Xxxxxx Fee No 1
7 Silver Portfolio-Kimco Fee No 1
1 Valley Forge Office Center Fee No 1
3 Centergy Office Fee/Leasehold Yes 1
9 Renaissance Hotel Boca Raton & Marriott Fort Lauderdale North Fee No 1
5 Saddle Creek Apartments Fee No 2
8 Ventana Apartments Fee No 2
0 Xxxxxxx Xxxxxx Fee No 1
8 Independence Village - Peoria Fee Xx 0
0 Xxxxxxxxxxxx Xxxxxxx - Xxxxxxx Xxxxx Fee No 1
2 Polo Club Fee No 2
5 Cedar Run Apartments Fee No 1
9 Hilton Suites Anaheim Fee No 1
3 Leafstone Apartments Fee No 2
0 Xxxxxxx Xxxxxx Fee No 1
6 The Ashford at Stone Ridge Fee No 2
9 Plaza at Xxxxxxxx Centre Fee No 1
0 Xxxxxxxxx Plaza Fee No 1
1 River Place Apartments Fee Yes 1
2 La Habra Business Center and Tuff Guy Storage Fee No 1
5 Topanga Portfolio Fee No 1
8 Atrium Office Park Fee No 1
2 Grande Apartments Fee No 2
4 Xxxxxxx - Southpointe Medical Center Fee No 1
1 Xxxxxx Canyon Office Building Fee No 1
4 Residence Inn - Franklin Fee Xx 0
0 Xxxxxxx Xxxx Xxxxx Fee No 1
0 Residence Inn by Marriott - Novi Fee No 1
3 Residence Inn by Marriott - Weston Fee Xx 0
0 Xxxx Xxxxx Xxxxxxxx Xxxxxx Fee Xx 0
00 Xxxxxxxx Xxxxxxxx Xxxxxxx Xxxxx I Fee No 1
13 Towne Place Suites by Marriott - Orlando Fee No 1
14 Xxxxx XX Portfolio (Quail and Greentree) Fee No 2
17 Quail Pointe Apartments Fee No 2
19 Tempe St. Luke's Office Building Leasehold No 1
22 Springhill Suites - Southfield Fee No 1
23 North Rivers Business Center Fee No 1
30 1120 Nasa Fee No 1
00 Xxxxx Xxxx Xxx Xx 0
00 Xxxxxxx Xxxxxxx Fee No 1
36 Xxxxxxx Xxxxxxxx Retail Fee No 1
37 JFK Medical Pavilion I Fee No 1
39 Courtyard by Marriott - Grand Rapids Airport Fee No 1
42 Chefalo Self Storage Fee No 1
45 Fairfield Inn by Marriott - Fort Xxxxx Fee No 1
53 Walgreens (Missouri, TX) Fee No 1
54 West Oxmoor Tower Fee No 1
61 Walgreens (Statesboro) Fee No 1
66 Holiday Inn Express - Hialeah Fee Xx 0
00 Xxxxxxxxx (Xxx Xxxxxxxxx) Fee No 1
68 8700 Commerce Park Fee No 1
69 Garden Village Apartments Fee No 2
72 Xxxxxxxxxx El Paso Office Fee Xx 0
00 Xxxxxxxxxx Xxxxx Fee No 1
00 Xxxx Xxxxx Xxxxx Fee Yes 1
86 Madison Avenue Home Center Fee No 1
87 Congress Professional Center I Fee No 1
88 000 Xxxxxxxxxx Xxxx Fee No 1
95 Sinking Spring Marketplace Fee Xx 0
00 0000 Xxxxxxxxx Xxxxxxx Fee No 1
02 Xxxx- 000 Xxxx Xxxxxxxxxxxx Xxxx Fee No 1
03 Newbridge Road Shopping Center Fee No 1
07 Space Savers Self Storage Fee No 1
08 A & M Mobile Home Park Fee No 1
12 Cahuenga Apartments Fee No 2
21 EZ Encino Fee No 1
24 Jefferson Auto Center Fee No 1
25 Osler Medical Arts Pavilion Fee No 1
27 Xxxx Drug - Raleigh Fee No 1
33 Xxxx Drug - Franklinton Fee No 1
38 Xxxx Drug - St. Pauls Fee No 1
42 Xxxx- 000 Xxxx Xxxx Xx. Fee Xx 0
00 Xxxx Xxxx - Xxxxx Xxxxxx Fee No 1
48 Bluebird Apartments Fee No 2
52 Seven Juliustown Fee No 1
53 Xxxx Drug - Summerville Fee No 1
00 Xxxxxx Xxxxx Xxxxx Fee No 1
59 Xxxx Drug - Maxton Fee Xx 0
00 Xxxxxxxxx XXX xxx Xxxxxxxx Xxxxxxx MHC Fee No 2
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
1. Independence Village - Peoria
Independence Village - Winston Salem
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
SCHEDULE 1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
GMAC COMMERCIAL MORTGAGE CORPORATION
Exception to Representation 4 - Lien; Valid Assignment:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49168 000 Xxxx Xxxxxx Seller's mortgage encumbers,
inter alia, both the fee and
leasehold interests in the units
owned by XXX and leased to
borrower (collectively the "XXX
Units"). There is a senior
mortgage (a PILOT Mortgage)
encumbering the fee and
leasehold interests in the XXX
Units.
Exception to Representation 6 - Mortgage Status; Waivers and Modifications:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49527 Xxxx Drug - Mortgage Loans were assumed by
000 Xxxx Xxxxxxxxxxxx Xxxx. various borrowers unaffiliated
49518 Xxxx Drug - Franklintown with Seller on October 25, 2005.
49520 Xxxx Drug - Raleigh
49705 Atrium Office Park Mortgage Loans were assumed by
49866 Southpointe Medical Center Windrose affiliates on November
4, 2005.
49367 Congress Professional Center I Lender has granted conditional
00000 Xxxxx Xxxxxxx Xxxx Pavilion consent letters with respect
to transfer of Mortgaged
49330 Edinburg Regional Medical Properties to, and assumption of
Plaza I related Mortgage Loans by,
00000 Xxxxx Xx. Luke's Office Windrose affiliates.
Building
49900 Renaissance Lender and Borrower executed a
Second Modification Agreement on
or about November 2, 2005 that,
inter alia, amended the
certification requirements for
financial statements.
42651 JFK Medical Pavilion I Lender and Borrower executed a
First Amendment to Loan
Agreement on or about October
11, 2005 that changed the
voluntary prepayment provisions
from defeasance to yield
maintenance.
Exception to Representation 7 -Condition of Property:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
00000 Xxxxxxxxx Xxx - Xxxx Xxxxx, $34,550 of immediate repairs
FL were identified. No repair
reserve was required.
49660 Hilton Suites Anaheim $142,100 of immediate repairs
were identified. No reserved was
required.
00000 Xxxxx Xxxxx Apartments Property has sustained fire
damage.
Exception to Representation 14 - Insurance:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49561 Cahuenga Apartments The loan documents contain
limits on the amount of
terrorism coverage that is
required to be maintained.
00000 Xxxxxxx Xxxx Xxxxx
00000 Xxxxxxxxx Plaza
00000 Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx
00000 Xxxxxxx Apartments
49168 000 Xxxx Xxxxxx
49962 Silver Kimco
00000 Xxxxxxxxx (Xxxxxxxxxx) Tenant is permitted to self
insure. No representations are
made regarding insurance.
49849 Walgreens (New Braunfels)
50779 Walgreens (Missouri, TX)
Exceptions to Representation 17 - Leasehold Estate:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
41222 Centergy (Ground Lease (ii) The Ground Lease provides
encumbers parking parcel that ground lessee has an
only.) exclusive purchase option for
all of ground lessor's right,
title and interest in the
property, which is exercisable
on April 30, 2023.
(v) The Ground Lease provides
that ground lessee has an
exclusive purchase option for
all of ground lessor's right,
title and interest in the
property, which is exercisable
on April 30, 2023. (vii) The
Ground Lease provides that
ground lessee has an exclusive
purchase option for all of
ground lessor's right, title and
interest in the property, which
is exercisable on April 30,
2023.
(viii) The Ground Lease provides
that insurance proceeds shall be
the property of the ground
lessor subject to ground
lessor's right to repair the
structure.
00000 Xxxxx Xx. Luke's Office (iii) There are restrictions
Building pertaining to the assignment of
lessee's interest, as set forth
in the ground lease.
(ix) There are restrictions
pertaining tosubletting, as set
forth in the ground lease.
Exception to Representation 25 - Releases of Mortgaged Property:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49962 Silver Kimco The Mortgage Loan Documents
49581 Xxxxx XX Portfolio (Quail provide for a partial release of
and Greentree) the Mortgaged Property upon
47077 West Oxmoor Tower certain conditions more fully
49236 Holiday Inn Express - Hialeah set forth in the applicable
47827 Xxxxxxx Xxxxxxxx Retail Mortgage Loan Documents.
50211 Independence Village - Peoria The Mortgage Loan Documents
Independence Village - provide for a release of the
00000 Xxxxxxx Xxxxx cross collateralized Mortgaged
Property upon certain conditions
more fully set forth in the
applicable Mortgage Loan
Documents.
49900 Renaissance The Mortgage Loan Documents
provide for a release of a
portion of the Mortgaged
Property in connection with the
partial defeasance of the Loan
upon certain conditions more
fully set forth in the
applicable Mortgage Loan
Documents.
Exception to Representation 26 -Non Equity Participation:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49529 Xxxx- 000 Xxxx Xxxx Xx. A party related to the Seller
49525 Xxxx Drug - Xxxxx Island owns the borrower.
49513 Xxxx Drug - Maxton
49524 Xxxx Drug - St. Pauls
49526 Xxxx Drug - Summerville
Exception to Representation 29 - Local Law Compliance:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49576 Chefalo Self Storage Non-conforming use.
Exception to Representation 30 - Junior Liens:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49168 000 Xxxx Xxxxxx Seller's mortgage encumbers,
inter alia, both the fee and
leasehold interests in the units
owned by XXX and leased to
borrower (collectively the "XXX
Units"). The there are four
subordinate mortgages (which
secure certain Bond obligations,
collectively the "Bond
Mortgages") encumbering the
leasehold interests in the XXX
Units. The bond holder (which is
the borrower under the subject
loan) has pledged to Seller, the
bond holder's interest under the
Bonds and the related mortgages,
and has agreed that there shall
not be any foreclosure of any of
the Bond Mortgages without
Seller's consent.
Exception to Representation 36 -Due on Sale:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49900 Renaissance Mezzanine financing secured by
50719 8700 Commerce Park interests in the applicable
00000 Xxxx Xxxxx Xxxxxxxx Xxxxxx borrower is permitted, provided
50344 1120 Nasa the conditions in the applicable
Mortgage Loan Agreement are
satisfied.
47567 Grande Apartments Mezzanine financing secured by
49430 Xxxxxxxxxx El Paso Office interests in the applicable
borrower exists.
Exception to Representation 38 - Non-Recourse Exceptions:
ID# Mortgage Loan(s) Description of Exception
--- ---------------- ------------------------
49962 Silver Kimco No natural person is liable for
49330 Edinburg damages arising in the case of
50686 Valley Forge fraud or willful
00000 Xxxxx Xx. Luke's Office misrepresentation by the
Building Mortgagor, misappropriation of
49866 Xxxxxxx - Southpointe rents, insurance proceeds, or
Medical Center condemnation awards and breaches
49368 Osler Medical Arts Pavilion of environmental covenants.
49529 Xxxx- 000 Xxxx Xxxx Xx.
00000 Xxxx- 000 Xxxx Xxxxxxxxxxxx
Xxxx
00000 Xxxx Drug - Franklinton
49525 Xxxx Drug - Xxxxx Island
49513 Xxxx Drug - Maxton
49520 Xxxx Drug - Raleigh
49524 Xxxx Drug - St. Pauls
49526 Xxxx Drug - Summerville
50212 Xxxxxxxxxxxx Xxxxxxx -
Xxxxxxx Xxxxx
00000 Xxxxxxxxxxxx Xxxxxxx - Xxxxxx
00000 Holiday Inn Express - Hialeah
49660 Hilton Suites Anaheim
49367 Congress Professional Center
I
49705 Xxxxxx Xxxxxx Xxxx
00000 5450 Northwest Central
42651 JFK Medical Pavilion I No natural person is liable for
damages arising in the case of
breaches of environmental
covenants.
49886 North Rivers Business Center Limit on environmental indemnity
not to exceed $1,000,000
SCHEDULE 2
Representation 7 -Condition of Property:
(a) Loans Subject to Engineering Report within 18 months prior to Cut-off Date:
All Mortgage Loans other than JFK Medical Pavilion (ID # 42651)
(b) Loans Not Subject to Engineering Report within 18 months prior to the
Cut-off Date:
JFK Medical Pavilion (ID # 42651)
Representation 12 - Environmental Conditions:
(a) Loans Subject to Environmental Site Assessment within 18 months prior to
Cut-off Date:
All Mortgage Loans other than JFK Medical Pavilion (ID # 42651)
(b) Loans Not Subject to Environmental Site Assessment within 18 months prior to
the Cut-off Date:
JFK Medical Pavilion (ID # 42651)
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE LOAN SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Mortgage Loan Seller hereby
represents and warrants, as of the date hereinbelow specified or, if no such
date is specified, as of the Closing Date, except as set forth on Schedule B-1
hereto, that:
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage Loans,
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 of the Mortgage Loans to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. 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.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. Each related Mortgage is a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable
first lien on the related Mortgaged Property, subject only to Permitted
Encumbrances. None of the Permitted Encumbrances, individually or in the
aggregate, materially interferes with the security intended to be provided
by such Mortgage, the marketability or current use of the Mortgaged
Property, or the current ability of the Mortgaged Property to generate
operating income sufficient to service the Mortgage Loan debt. The related
assignment of such Mortgage executed and delivered in favor of the Trustee
is in recordable form and constitutes a legal, valid and binding
assignment sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable
security interest in favor of the holder thereof in all of the related
Mortgagor's personal property used in, and reasonably necessary to
operate, the related Mortgaged Property. In the case of a Mortgaged
Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in such personal property, to the extent a security
interest may be so created therein, and such security interest is a first
priority security interest, subject to any prior purchase money security
interest in such personal property and any personal property leases
applicable to such personal property. Notwithstanding 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 Uniform Commercial Code
financing statements are required in order to effect such perfection.
5) Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, 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 has been executed and delivered in favor
of the Trustee and is in recordable form and constitutes a legal, valid
and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to this Exhibit B), nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment
of Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File; and since the later of the date of delivery of the relevant
due diligence file for the Mortgage Loan or any supplement to such file,
no waiver, consent, modification, assumption, alteration, satisfaction,
cancellation, subordination or rescission which changes the terms of, or
the security for, the Mortgage Loan in any material respect has been
given.
7) Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of
an engineering report within 18 months prior to the Cut-off Date as set
forth on Schedule B-2 to this Exhibit B, each Mortgaged Property is, to
the Seller's knowledge, free and clear of any damage (or adequate reserves
therefor have been established) that would materially and adversely affect
its value as security for the related Mortgage Loan, and (ii) with respect
to the Mortgaged Properties securing the Mortgage Loans that were not the
subject of an engineering report within 18 months prior to the Cut-off
Date as set forth on Schedule B-2 to this Exhibit B, each Mortgaged
Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor
have been established) and each Mortgaged Property is free of structural
defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for
the condemnation of all or any material portion of any Mortgaged Property.
To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of
the date of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly
within the boundaries and building restriction lines of such property,
except for encroachments that are insured against by the lender's title
insurance policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property,
and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments
that are insured against by the Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) lender's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance
policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy
insures that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to Permitted Encumbrances. Each Title
Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid,
and 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) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied with,
or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) 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.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) 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 the
related Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth
on Schedule B-2 to this Exhibit B, an environmental site assessment,
or an update of a previous such report, was performed with respect
to each Mortgaged Property in connection with the origination or the
sale of the related Mortgage Loan, a report of each such assessment
(or the most recent assessment with respect to each Mortgaged
Property) (an "Environmental Report") has been delivered to the
Purchaser, and the Seller has no knowledge of any material and
adverse environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition
or circumstance or (ii) environmental insurance covering such
condition was obtained or must be maintained until the condition is
remediated, or (iii) the related Mortgagor was required either to
provide additional security that was deemed to be sufficient by the
originator in light of the circumstances and/or to establish an
operations and maintenance plan. In the case of each Mortgage Loan
set forth on Schedule B-1 to this Exhibit B, (i) such Mortgage Loan
is the subject of a Secured Creditor Impaired Property Policy,
issued by the issuer set forth on Schedule B-1 (the "Policy Issuer")
and effective as of the date thereof (the "Environmental Insurance
Policy"), (ii) the Environmental Insurance Policy is in full force
and effect, (iii)(a) a property condition or engineering report was
prepared with respect to lead based paint ("LBP"), asbestos
containing materials ("ACM") and radon gas ("RG") at each related
Mortgaged Property, and (b) if such report disclosed the existence
of a material and adverse LBP, ACM or RG environmental condition or
circumstance affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified condition
prior to closing the Mortgage Loan or provide additional security or
establish with the lender a reserve from loan proceeds, in an amount
deemed to be sufficient by the Seller, for the remediation of the
problem, and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of
the Mortgage Loan, (iv) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of LBP,
ACM or RG) that was not disclosed to the Policy Issuer in one or
more of the following: (a) the application for insurance, (b) a
borrower questionnaire that was provided to the Policy Issuer, or
(c) an engineering or other report provided to the Policy Issuer,
and (v) the premium of any Environmental Insurance Policy has been
paid through the maturity of the policy's term and the term of such
policy extends at least five years beyond the maturity of the
Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth
on Schedule B-2 to this Exhibit B, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property before such
Mortgaged Property could be altered, renovated, demolished or
transferred, or (b) the presence of such Hazardous Material could
(upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security
interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost
materially and adversely affecting the value of the Mortgaged
Property, and (ii) such Mortgaged Property is in material compliance
with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with
such laws does not have a material adverse effect on the value of
such Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation of any such
law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law ordinance, rule, regulation or
order, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. xx.xx. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. xx.xx. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. xx.xx. 1251 et seq.),
the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor 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
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related
Mortgagor with respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, riot
attending a strike, civil commotion, aircraft, vehicles and smoke, and, to
the extent required as of the date of origination by the originator of
such Mortgage Loan consistent with its normal commercial mortgage lending
practices, against other risks insured against by persons operating like
properties in the locality of the Mortgaged Property in an amount not less
than the lesser of the principal balance of the related Mortgage Loan and
the replacement cost of the Mortgaged Property, and contains no provisions
for a deduction for depreciation, and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
Mortgaged Property; (b) a business interruption or rental loss insurance
policy, in an amount at least equal to six months of operations of the
Mortgaged Property; (c) a flood insurance policy (if any portion of
buildings or other structures on the Mortgaged Property are located in an
area identified by the Federal Emergency Management Agency as having
special flood hazards and the Federal Emergency Management Agency requires
flood insurance to be maintained); and (d) a comprehensive general
liability insurance policy in amounts as are generally required by
commercial mortgage lenders, and in any event not less than $1 million per
occurrence. Such insurance policy contains a standard mortgagee clause
that names the mortgagee as an additional insured in the case of liability
insurance policies and as a loss payee in the case of property insurance
policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including
any notice of nonpayment of premiums, that has not been cured. Each
Mortgage obligates the related Mortgagor to maintain all such insurance
and, upon such Mortgagor's failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor's cost and expense
and to seek reimbursement therefor from such Mortgagor. Each Mortgage
provides that casualty insurance proceeds will be applied (a) to the
restoration or repair of the related Mortgaged Property, (b) to the
restoration or repair of the related Mortgaged Property, with any excess
insurance proceeds after restoration or repair being paid to the
Mortgagor, or (c) to the reduction of the principal amount of the Mortgage
Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured
in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such
Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) does not prohibit the current use of the Mortgaged Property
and does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease since the
origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part of
the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Encumbrances;
iii) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground
Lease is binding on a mortgagee unless the mortgagee has consented
thereto, and the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of default under
the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of
any default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, 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 has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee or
a trustee appointed by the related Mortgage having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the lessee
thereunder for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease if the Ground Lease is
rejected in a bankruptcy proceeding.
18) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
19) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
20) [Reserved];
21) Advancement of Funds by the Seller. No holder of a 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, directly or indirectly, for the payment of any amount required
by such Mortgage Loan.
22) No Mechanics' Liens. Each Mortgaged 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 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 except, in each case, for liens insured
against by the Title Policy referred to herein.
23) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
24) Cross-collateralization. Except as set forth on Schedule B-1 to
this Exhibit B, no Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
25) Releases of Mortgaged Property. Except as described in the next
sentence, no Mortgage Note or Mortgage requires the mortgagee to release
all or any material portion of the related Mortgaged Property that was
included in the appraisal for such Mortgaged Property, and/or generates
income from the lien of the related Mortgage except upon payment in full
of all amounts due under the related Mortgage Loan or in connection with
the defeasance provisions of the related Note and Mortgage. The Mortgages
relating to those Mortgage Loans identified on Schedule B-1 hereto require
the mortgagee to grant releases of portions of the related Mortgaged
Properties upon (a) the satisfaction of certain legal and underwriting
requirements and/or (b) the payment of a release price and prepayment
consideration in connection therewith. Except as described in the first
sentence hereof and for those Mortgage Loans identified on Schedule B-1
hereto, no Mortgage Loan permits the full or partial release or
substitution of collateral unless the mortgagee or servicer can require
the Borrower to provide an opinion of tax counsel to the effect that such
release or substitution of collateral (a) would not constitute a
"significant modification" of such Mortgage Loan within the meaning of
Treas. Reg. ss.1.1001-3 and (b) would not cause such Mortgage Loan to fail
to be a "qualified mortgage" within the meaning of Section 860G(a)(3)(A)
of the Code.
26) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the lender or provides for negative
amortization (except that the ARD Loan may provide for the accrual of
interest at an increased rate after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
27) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to
the extent the same materially and adversely affects the value of the
Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and
17 of this Exhibit B.
28) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of
the related Mortgage Loan.
29) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
30) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) 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. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
31) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan,
Mortgagor or related Mortgaged Property that might adversely affect title
to the Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
32) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
33) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the 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.
34) Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to the Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for
participation in such programs.
35) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
the Purchaser.
36) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
37) Single Purpose Entity. The Mortgagor on each Mortgage Loan with
a Cut-off Date Principal Balance in excess of $5 million, 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 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 (other than a Mortgagor for a Mortgage Loan
that is cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and apart
from any other person.
38) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Mortgagor, provided that at least
one natural person (and the Mortgagor if the Mortgagor is not a natural
person) is liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the Mortgagor,
misappropriation of rents, insurance proceeds, or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
39) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the lender incurred in connection
with the defeasance of such Mortgage Loan and the release of the related
Mortgaged Property, and the borrower is required to pay all reasonable
costs and expenses of the lender associated with the approval of an
assumption of such Mortgage Loan.
40) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act
of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
41) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
42) Certain Leases. To Seller's knowledge, and without independent
inquiry, (A) each commercial lease covering more than 10% (20% in the case
of any Mortgage Loan having an original principal balance less than
$2,500,000) of the net leaseable area of the related Mortgaged Property is
in full force and effect and (B) there exists no default under any such
commercial lease either by the lessee thereunder or by the related
borrower that could give rise to the termination of such lease;
43) Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan
has been serviced, and each provision of the related REMIC declaration has
been complied with in a manner such that the single asset REMIC has not
failed to qualify as a REMIC for federal income tax purposes at any time
since the Startup Day.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Mortgage Loan Seller" or "to the Mortgage Loan Seller's
knowledge" shall mean (except where otherwise expressly set forth below) the
actual state of knowledge of the Mortgage Loan Seller (i) after the Mortgage
Loan Seller's having conducted such inquiry and due diligence into such matters
as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Mortgage Loan Seller's underwriting standards, at the time of the Mortgage
Loan Seller's origination or acquisition of the particular Mortgage Loan; and
(ii) subsequent to such origination, utilizing the monitoring practices
customarily utilized by prudent commercial or multifamily, as applicable,
mortgage lenders with respect to securitizable commercial or multifamily, as
applicable, mortgage loans, including inquiry with a representative of the loan
servicer designated as the party responsible for the knowledge of the servicer
pertaining to the Mortgage Loans. Also for purposes of these representations and
warranties, the phrases "to the actual knowledge of the Mortgage Loan Seller" or
"to the Mortgage Loan Seller's actual knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the
Mortgage Loan Seller without any express or implied obligation to make inquiry.
All information contained in the documents included in the definition of
Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Mortgage Loan Seller, to
the extent that the Mortgage Loan Seller or its closing counsel or custodian, if
any, has reviewed or had possession of such document at any time. For purposes
of these representations and warranties, to the extent that any representation
or warranty is qualified by the Mortgage Loan Seller's knowledge with respect to
the contents of the Mortgage Note, Mortgage, lender's title policy and any
letters of credit or Ground Leases, if such document is not included in the
Mortgage File, the Mortgage Loan Seller shall make such representation or
warranty without any such qualification. Wherever there is a reference in a
representation or warranty to receipt by, or possession of, the Mortgage Loan
Seller of any information or documents, or to any action taken by the Mortgage
Loan Seller or to any action which has not been taken by the Mortgage Loan
Seller or its agents or employees, such reference shall include the receipt or
possession of such information or documents by, or the taking of such action or
the not taking such action by, the Mortgage Loan Seller. For purposes of these
representations and warranties, when referring to the conduct of "reasonable
prudent institutional commercial or multifamily, as applicable mortgage lenders"
(or similar such phrases and terms), such conduct shall be measured by reference
to the industry standards generally in effect as of the date the related
representation or warranty relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit B shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of GMAC Commercial Mortgage
Corporation ("GMACCM");
2. that _______________ is the owner and holder of a mortgage loan
in the original principal amount of $______________ secured by a mortgage (the
"Mortgage") on the premises known as ______________ ______________ located in
______________;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by
______________, to _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2005-C5 (the "Trustee") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify and
hold harmless the Trustee and its successors and assigns from and against any
and all costs, expenses and monetary losses arising as a result of
_______________'s failure to deliver said original Note to the Trustee.
GMAC COMMERCIAL MORTGAGE CORPORATION
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2005
