EXHIBIT 99.3
CWCapital Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of August 1, 2005
(the "Agreement"), is entered into between CWCapital LLC, as seller of the
U-Haul Portfolio Loan, as identified on the schedule annexed hereto as Exhibit
A-1 and as an additional party ("CWCapital") and CWCapital Mortgage Securities I
LLC, as seller of the other mortgage loans identified on the schedule annexed
hereto as Exhibit A-2 ("CWCMSI") (each, a "Seller" and collectively, the
"Sellers") and Wachovia Commercial Mortgage Securities, Inc. (the "Purchaser").
The Sellers intend to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A-1 and Exhibit A-2, respectively. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of August 1, 2005, among the Purchaser, as depositor,
Wachovia Bank, National Association, as master servicer (in such capacity, the
"Master Servicer"), CWCapital Asset Management LLC, as special servicer (the
"Special Servicer"), LaSalle Bank National Association, as trustee (the
"Trustee"), and ABN AMRO Bank, N.V., as fiscal agent (the "Fiscal Agent").
Capitalized terms used but not defined herein (including the Schedules attached
hereto) have the respective meanings set forth in the Pooling and Servicing
Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
CWCapital agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the related Mortgage Loan Schedule (the "CWCapital
Mortgage Loans"). The Mortgage Loan Schedule may be amended to reflect the
actual CWCapital Mortgage Loans delivered to the Purchaser pursuant to the terms
hereof. The CWCapital Mortgage Loans are expected to have an aggregate principal
balance of $44,937,023 (the "CWCapital Mortgage Loan Balance") (subject to a
variance of plus or minus 5.0%) as of the close of business on the Cut-Off Date,
after giving effect to any payments due on or before such date, whether or not
such payments are received.
CWCMSI agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the related Mortgage Loan Schedule (the "CWCMSI
Mortgage Loans"). The Mortgage Loan Schedule may be amended to reflect the
actual CWCMSI Mortgage Loans delivered to the Purchaser pursuant to the terms
hereof. The CWCMSI Mortgage Loans are expected to have an aggregate principal
balance of $276,662,658 (the "CWCMSI Mortgage Loan Balance" and together with
the CWCapital Mortgage Loan Balance, the "CWCapital/CWCMSI Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received.
The CWCapital/CWCMSI Mortgage Loan Balance, together with the
aggregate principal balance of the Other Mortgage Loans as of the Cut-Off Date
(after giving effect to any payments due on or before such date whether or not
such payments are received), is expected to equal an aggregate principal balance
(the "Cut-Off Date Pool Balance") of $3,663,837,892 (subject to a variance of
plus or minus 5.0%). The purchase and sale of the Mortgage Loans shall take
place August 23, 2005, or such other date as shall be mutually acceptable to the
parties to this Agreement (the "Closing Date"). The consideration (the
"Aggregate Purchase Price") for the Mortgage Loans shall be equal to (i) %
of the CWCapital/CWCMSI Mortgage Loan Balance as of the Cut-Off Date, plus (ii)
$1,075,470, which amount represents the amount of interest accrued on the
CWCapital/CWCMSI Mortgage Loan Balance at the related Net Mortgage Rate for the
period from and including the Cut-Off Date up to but not including the Closing
Date.
The related Aggregate Purchase Price shall be paid to CWCapital or
its designee by wire transfer in immediately available funds on the Closing
Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, each Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse (except
as set forth in this Agreement), all the right, title and interest of such
Seller in and to the Mortgage Loans identified on the related Mortgage Loan
Schedule as of such date, on a servicing released basis, together with all of
such Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and all
other recoveries of principal and interest collected after the Cut-Off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date). All scheduled payments of principal and interest due
on or before the Cut-Off Date but collected on or after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the applicable Seller.
(c) No later than the Closing Date, each Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each applicable Mortgage Loan (each a "Mortgage File").
All Mortgage Files so delivered will be held by the Trustee in escrow at all
times prior to the Closing Date. Each Mortgage File shall contain the following
documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "LaSalle Bank National Association, as trustee
for the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-C20" or in
blank (or a lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto);
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of Wachovia
Bank Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2005-C20", or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "LaSalle Bank National Association, as trustee
for the registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2005-C20", or in
blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "LaSalle Bank National
Association, as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2005-C20, as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum of
Ground Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan;
(xiii) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and applicable transfer or
assignment documents; and
(xiv) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Intercreditor
Agreement; provided that a copy of each Mortgage Note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
Notwithstanding the foregoing, with respect to the U-Haul Portfolio Loan, the
MSCI 2005-HQ6 Trustee will hold the original documents related to the U-Haul
Portfolio Loan for the benefit of the MSCI 2005-HQ6 Trust Fund, other than the
Mortgage Notes which will be held by the Trustee under the Pooling and Servicing
Agreement. However, if the custodian on any of the aforementioned transactions
is the Custodian on this transaction, photocopies do not need to be made of the
Mortgage Files for that particular transaction.
(d) Each Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the applicable Seller
shall draw upon such letter of credit for the benefit of the Trust pursuant to
written instructions from the Master Servicer. Each Seller shall reimburse the
Trustee for all reasonable costs and expenses, if any, incurred by the Trustee
for recording any documents described in Section 2(c)(iv)(c) hereof and filing
any assignments of UCC Financing Statements described in the proviso in the
third to last sentence in Section 2.01(d) of the Pooling and Servicing
Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the applicable Seller's possession (the "Additional Mortgage Loan Documents")
that are not required to be delivered to the Trustee shall promptly be delivered
or caused to be delivered by such Seller to the Master Servicer or at the
direction of the Master Servicer to the appropriate sub-servicer, together with
any related escrow amounts and reserve amounts.
(f) Each Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) Each Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) CWCapital and CWCMSI are each a limited liability company
organized and validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and the State of Delaware, respectively, and
each Seller possesses all requisite authority, power, licenses, permits
and franchises to carry on its business as currently conducted by it and
to execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized, executed
and delivered by such Seller and, assuming due authorization, execution
and delivery hereof by the Purchaser, constitutes a legal, valid and
binding obligation of such Seller, enforceable against such Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general, and by
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement which purport to provide indemnification from liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by such Seller
and such Seller's performance and compliance with the terms of this
Agreement will not (A) violate such Seller's certificate of formation or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a material default (or an
event which, with notice or lapse of time, or both, would constitute a
material default) under, or result in the breach of, any material
contract, agreement or other instrument to which such Seller is a party or
by which such Seller is bound;
(iv) Such Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in such Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of such Seller or its properties or have consequences
that would materially and adversely affect its performance hereunder;
(v) Such Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of formation, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in such Seller's reasonable and good faith
judgment, materially and adversely affect the ability of such Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution of this Agreement or the performance
by such Seller of its obligations under this Agreement (except to the
extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Seller of or compliance by such Seller with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained, and no bulk sale law
applies to such transactions;
(vii) No litigation is pending or, to such Seller's knowledge,
threatened against such Seller that would, in such Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by such Seller of its
obligations under this Agreement; and
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, such Seller will report the transfer of
its Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Aggregate Purchase Price. The consideration received by such Seller
upon the sale of its Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. Each Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of its Mortgage Loans to the
Purchaser. Neither Seller is selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of such
Seller.
(b) CWCMSI and CWCapital each hereby make the representations and
warranties contained in Schedule I for the benefit of the Purchaser and the
Trustee for the benefit of the Certificateholders as of the Closing Date, with
respect to (and solely with respect to) each Mortgage Loan of CWCMSI, which
representations and warranties are subject to the exceptions set forth on
Schedule II. CWCapital hereby makes the representations and warranties contained
in Schedule I for the benefit of the Purchaser and the Trustee for the benefit
of the Certificateholders as of the Closing Date, with respect to (and solely
with respect to) its Mortgage Loan, which representations and warranties are
subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the relevant Seller shall cure any material
exception listed therein (for the avoidance of doubt, any deficiencies with
respect to the documents specified in clause (ii) resulting solely from a delay
in the return of the related documents from the applicable recording office,
shall be cured in the time and manner described in Section 2.01(c) of the
Pooling and Servicing Agreement). If such exception is not so cured, such Seller
shall either (1) repurchase the related Mortgage Loan, (2) with respect to
exceptions relating to clause (xii) of the definition of "Mortgage File",
deposit with the Trustee an amount, to be held in trust in a Special Reserve
Account pursuant to the Pooling and Servicing Agreement, equal to the amount of
the undelivered letter of credit (in the alternative, such Seller may deliver to
the Trustee, with a certified copy to the Master Servicer and Trustee, a letter
of credit for the benefit of the Master Servicer on behalf of the Trustee and
upon the same terms and conditions as the undelivered letter of credit) which
the Master Servicer on behalf of the Trustee may use (or draw upon, as the case
may be) under the same circumstances and conditions as the Master Servicer would
have been entitled to draw on the undelivered letter of credit, or (3) with
respect to any exceptions relating to clauses (i), (ii) and (vii), deposit with
the Trustee an amount, to be held in trust in a Special Reserve Account pursuant
to the Pooling and Servicing Agreement, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan on such date. Any funds or letter of credit
deposited pursuant to clauses (2) and (3) shall be held by the Trustee until the
earlier of (x) the date on which the Master Servicer certifies to the Trustee
and the Controlling Class Representative that such exception has been cured (or
the Trustee certifies the same to the Controlling Class Representative), at
which time such funds or letter of credit, as applicable, shall be returned to
such Seller and (y) thirty (30) Business Days or, if the Controlling Class
Representative has extended the cure period, forty-five (45) Business Days after
the Closing Date; provided, however, that if such exception is not cured within
such thirty (30) Business Days or forty-five (45) Business Days, as the case may
be, (A) in the case of clause (2), the Trustee shall retain the funds or letter
of credit, as applicable, or (B) in the case of clause (3), the relevant Seller
shall repurchase the related Mortgage Loan in accordance with the terms and
conditions of this Agreement, at which time such funds shall be applied to the
Purchase Price of the related Mortgage Loan and any letter of credit will be
returned to such Seller.
If a Seller receives written notice of a Document Defect or a Breach
pursuant to Section 2.03(a) of the Pooling and Servicing Agreement relating to a
Mortgage Loan, then the Seller shall not later than 90 days from receipt of such
notice (or, in the case of a Document Defect or Breach relating to a Mortgage
Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions
(a "Qualified Mortgage"), not later than 90 days from the date that any party to
the Pooling and Servicing Agreement discovers such Document Defect or Breach
provided such Seller receives such notice in a timely manner), if such Document
Defect or Breach shall materially and adversely affect the value of the
applicable Mortgage Loan, the interest of the Trust therein or the interests of
any Certificateholder, cure such Document Defect or Breach, as the case may be,
in all material respects, which shall include payment of actual or provable
losses and any Additional Trust Fund Expenses directly resulting from any such
Document Defect or Breach or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period or (ii) with respect to CWCapital, other than with respect
to the U-Haul Portfolio Loan (loan numbers 87, 95, 96, 100, 101 and 108,
substitute a Qualified Substitute Mortgage Loan for such affected Mortgage Loan
not later than the end of such 90-day period (and in no event later than the
second anniversary of the Closing Date) and pay the Master Servicer for deposit
into the Certificate Account, any Substitution Shortfall Amount in connection
therewith; provided, however, that unless the Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, and if such Document Defect or Breach is
capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect or
Breach within such 90-day period, such Seller shall have an additional 90 days
to complete such cure (or, failing such cure, to repurchase or substitute the
related Mortgage Loan); and provided, further, that with respect to such
additional 90-day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that no Document Defect (other than with respect
to a Mortgage Note, Mortgage, title insurance policy, Ground Lease, any letter
of credit, any franchise agreement, any comfort letter and (if required) any
comfort letter transfer documents (collectively, the "Core Material Documents"))
shall be considered to materially and adversely affect the value of the related
Mortgage Loan, the interests of the Trust therein or the interests of any
Certificateholder unless the document with respect to which the Document Defect
exists is required in connection with an imminent enforcement of the mortgagee's
rights or remedies under the related Mortgage Loan, defending any claim asserted
by any borrower or third party with respect to the Mortgage Loan, establishing
the validity or priority of any lien or any collateral securing the Mortgage
Loan or for any immediate significant servicing obligations; provided, further,
with respect to Document Defects which materially and adversely affect the
interests of any Certificateholder, the interests of the Trust therein or the
value of the related Mortgage Loan, other than with respect to Document Defects
relating to the Core Material Documents, any applicable cure period following
the initial 90 day cure period may be extended by the Master Servicer or the
Special Servicer if the document involved is not needed imminently. Such
extension will end upon 30 days notice of such need as reasonably determined by
the Master Servicer or Special Servicer (with a possible 30 day extension if the
Master Servicer or Special Servicer agrees that the Seller is diligently
pursuing a cure). The Seller shall cure all Document Defects which materially
and adversely affect the interests of any Certificateholder, the interests of
the Trust therein or the value of the related Mortgage Loan, regardless of the
document involved, no later than 2 years following the Closing Date; provided
that the initial 90 day cure period referenced in this paragraph may not be
reduced. For a period of two years from the Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is any
uncured Document Defect or Breach, the relevant Seller shall provide the
officer's certificate to the Trustee described above as to the reasons such
Document Defect or Breach remains uncured and as to the actions being taken to
pursue cure. Notwithstanding the foregoing, the delivery of a commitment to
issue a policy of lender's title insurance as described in Representation 12 of
Schedule I hereof in lieu of the delivery of the actual policy of lender's title
insurance shall not be considered a Document Defect or Breach with respect to
any Mortgage File if such actual policy of insurance is delivered to the Trustee
or a Custodian on its behalf not later than the 90th day following the Closing
Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
relevant Seller will be required to repurchase or substitute for all of the
remaining Crossed Loan(s) in the related Crossed Group as provided in the
immediately preceding paragraph unless such other Crossed Loans in such Crossed
Group satisfy the Crossed Loan Repurchase Criteria and satisfy all other
criteria for substitution or repurchase of Mortgage Loans set forth herein. In
the event that the remaining Crossed Loans satisfy the aforementioned criteria,
such Seller may elect either to repurchase or substitute for only the affected
Crossed Loan as to which the related Breach or Document Defect exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Group. The Seller shall be responsible for the cost of any Appraisal required to
be obtained by the Master Servicer to determine if the Crossed Loan Repurchase
Criteria have been satisfied, so long as the scope and cost of such Appraisal
has been approved by such Seller (such approval not to be unreasonably
withheld).
To the extent that a Seller is required to repurchase or substitute
for a Crossed Loan hereunder in the manner prescribed above while the Trustee
continues to hold any other Crossed Loans in such Crossed Group, neither such
Seller nor the Purchaser shall enforce any remedies against the other's Primary
Collateral, but each is permitted to exercise remedies against the Primary
Collateral securing its respective Crossed Loans, including with respect to the
Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then such Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the applicable Seller shall furnish to the
Trustee an Opinion of Counsel that any modification shall not cause an Adverse
REMIC Event. Any expenses incurred by the Purchaser in connection with such
modification or accommodation (including but not limited to recoverable attorney
fees) shall be paid by the Seller.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the relevant Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the
Trustee, the Custodian, the Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by
such Seller, all portions of the Mortgage File and other documents pertaining to
such Mortgage Loan possessed by it, and (iii) the Master Servicer and the
Special Servicer shall release to such Seller any Escrow Payments and Reserve
Funds held by it in respect of such repurchased or deleted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3 of this Agreement; provided that for purposes of the
remedies set forth in this Section 3, the sole recourse with respect to the
CWCMSI Mortgage Loans shall be against CWCapital. Nothing in this Agreement
shall prohibit the Purchaser or its assigns (including the Master Servicer
and/or the Special Servicer) from pursuing any course of action authorized by
the Pooling and Servicing Agreement while the Purchaser asserts a claim or
brings a cause of action to enforce any rights set forth herein against the
relevant Seller (or with respect to the CWCMSI Mortgage Loans, CWCapital).
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the relevant Seller in writing of
its intention to liquidate such Defaulted Mortgage Loan or REO Property at least
45 days prior to any such action. If (a) such Seller consents to such sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or REO Property or
(b) a court of competent jurisdiction determines that such Seller is liable
under this Agreement to repurchase such Defaulted Mortgage Loan or REO Property,
then such Seller shall remit to the Purchaser an amount equal to the difference
if any of the price of such Defaulted Mortgage Loan or REO Property as sold and
the price at which such Seller would have had to repurchase such Defaulted
Mortgage Loan or REO Property under this Agreement. The relevant Seller shall
have 10 Business Days after receipt of notice to determine whether or not to
consent to such sale. If such Seller does not consent to such sale, the Special
Servicer shall contract with a Determination Party (as defined in the Pooling
and Servicing Agreement) as to the merits of such proposed sale. If the related
Determination Party determines that such proposed sale is in accordance with the
Servicing Standard and the provisions of the Pooling and Servicing Agreement
with respect to the sale of Defaulted Mortgage Loans and REO Properties and,
subsequent to such sale, a court of competent jurisdiction determines that
Seller was liable under this Agreement and required to repurchase such Defaulted
Mortgage Loan or REO Property in accordance with the terms hereof, then such
Seller shall remit to Purchaser an amount equal to the difference (if any)
between the proceeds of the related action and the price at which the Seller
would have been obligated to pay had such Seller repurchased such Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the terms hereof including the costs
related to contracting with the related Determination Party provided that the
foregoing procedure in this Section 3(f) shall not preclude such Seller from
repurchasing the Defaulted Mortgage Loan or REO Property prior to the execution
of a binding contract of sale with a third party in accordance with the other
provisions of this Section 3 (excluding this Section 3(f)). If the related
Determination Party determines that the sale of the related Defaulted Mortgage
Loan or REO Property is not in accordance with the Servicing Standards and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and the Special Servicer
subsequently sells such Mortgage Loan or REO Property, then such Seller will not
be liable for any such difference (nor any cost of contracting with the
Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the applicable Seller in
writing to wire transfer to the Master Servicer for deposit into the Certificate
Account, within 90 days of such Seller's receipt of such direction, the amount
of any such costs and expenses borne by the Purchaser, the Certificateholders,
the Master Servicer, the Special Servicer and the Trustee on their behalf that
are the basis of such Breach. Upon its making such deposit, such Seller shall be
deemed to have cured such Breach in all respects. Provided such payment is made
in full, this paragraph describes the sole remedy available to the Purchaser,
the Certificateholders, the Master Servicer, the Special Servicer and the
Trustee on their behalf regarding any such Breach and the Seller shall not be
obligated to repurchase the affected Mortgage Loan on account of such Breach or
otherwise cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Sellers to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Sellers as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of the
Purchaser's articles of association or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Sellers set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Sellers hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Purchaser, the Sellers, the Underwriters, the Initial
Purchaser and their respective counsel in their reasonable discretion, shall be
duly executed and delivered by all signatories as required pursuant to the
respective terms thereof;
(c) The Sellers shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Sellers shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(e) The Sellers shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
and
(f) The letters shall have been received from the independent
accounting firms KPMG LLP and Deloitte & Touche LLP in form satisfactory to the
Purchaser, relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus and Prospectus Supplement,
respectively.
Each party hereto agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Sellers;
(b) A certificate of each Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchaser may rely, to the effect that: (i) the
representations and warranties of such Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; and (ii) such Seller has, in all material
respects, complied with all the agreements and satisfied all the conditions on
its part that are required under this Agreement to be performed or satisfied at
or prior to the Closing Date;
(c) An officer's certificate from an officer of each Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of such Seller, signed this Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of each Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchaser may rely, to the effect
that with respect to such Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Specified Portions of the Memorandum and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A thereto, the diskette which accompanies the Prospectus Supplement
(insofar as such diskette is consistent with such Annex A) and the following
sections of the Prospectus Supplement (exclusive of any statements in such
sections that purport to summarize the servicing and administration provisions
of the Pooling and Servicing Agreement): "Summary of Prospectus Supplement--The
Parties--The Mortgage Loan Sellers," "Summary of Prospectus Supplement--The
Mortgage Loans," "Risk Factors--The Mortgage Loans," and "Description of the
Mortgage Pool--General," "--Mortgage Loan History," "--Certain Terms and
Conditions of the Mortgage Loans," "--Assessments of Property Condition,"
"--Additional Mortgage Loan Information," "--Twenty Largest Mortgage Loans,"
"--The Mortgage Loan Sellers," "--Underwriting Standards," "--Representations
and Warranties; Repurchases and Substitutions." and with respect to CWCapital
only, "--Co-Lender Loans." The "Specified Portions" of the Memorandum shall
consist of the Specified Portions of the Prospectus Supplement and the first and
second full paragraphs on page "iv" of the Memorandum.
(e) The certificate of formation of each Seller, and an original or
copy of a certificate of good standing of CWCapital and CWCMSI issued by the
Commonwealth of Massachusetts and the State of Delaware, respectively, not
earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Sellers (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchaser and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) CWCapital shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchaser, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Preliminary Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing, (B) any items similar to Computational Materials or ABS Term Sheets
forwarded by either Seller to the Initial Purchaser, or in any revision or
amendment of or supplement to any of the foregoing or (C) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Sellers furnished by either
Seller for review by prospective investors (the items in (A), (B) and (C) above
being defined as the "Disclosure Material"), or (ii) arise out of or are based
upon the omission or alleged omission to state therein (in the case of
Computational Materials and ABS Term Sheets, when read in conjunction with the
Prospectus Supplement, in the case of items similar to Computational Materials
and ABS Term Sheets, when read in conjunction with the Memorandum, and in the
case of any summaries, reports, documents, written or computer materials, or
other information contemplated in clause (C) above, when read in conjunction
with the Memorandum) a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; but, with respect to the Disclosure Material
described in clauses (A) and (B) of the definition thereof, only if and to the
extent that (I) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon an untrue statement or omission with
respect to the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties contained in the Data File (it being herein acknowledged
that the Data File was and will be used to prepare the Prospectus Supplement and
the Preliminary Prospectus Supplement, including without limitation Annex A
thereto, the Memorandum, the Diskette, any Computational Materials and ABS Term
Sheets with respect to the Registered Certificates and any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates), (II) any such untrue statement or alleged
untrue statement or omission or alleged omission of a material fact occurring
in, or with respect to, such Disclosure Material, is with respect to, or arises
out of or is based upon an untrue statement or omission of a material fact with
respect to, the information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties and/or the Sellers set forth in the
Specified Portions of each of the Prospectus Supplement, the Preliminary
Prospectus Supplement and the Memorandum, (III) any such untrue statement or
alleged untrue statement or omission or alleged omission occurring in, or with
respect to, such Disclosure Material, arises out of or is based upon a breach of
the representations and warranties of either Seller set forth in or made
pursuant to Section 3 or (IV) any such untrue statement or alleged untrue
statement or omission or alleged omission occurring in, or with respect to, such
Disclosure Material, arises out of or is based upon any other written
information concerning the characteristics of the Mortgage Loans, the related
Mortgagors or the related Mortgaged Properties furnished to the Purchaser, the
Underwriters or the Initial Purchaser by either Seller; provided, that the
indemnification provided by this Section 7 shall not apply to the extent that
such untrue statement or omission of a material fact was made as a result of an
error in the manipulation of, or in any calculations based upon, or in any
aggregation of the information regarding the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties set forth in the Data File or
Annex A to the Prospectus Supplement or the Preliminary Prospectus Supplement to
the extent such information was not materially incorrect in the Data File or
such Annex A, as applicable, including without limitation the aggregation of
such information with comparable information relating to the Other Mortgage
Loans. Notwithstanding the foregoing, the indemnification provided in this
Section 7(a) shall not inure to the benefit of any Underwriter or Initial
Purchaser (or to the benefit of any person controlling such Underwriter or
Initial Purchaser) from whom the person asserting claims giving rise to any such
losses, claims, damages, expenses or liabilities purchased Certificates if (x)
the subject untrue statement or omission or alleged untrue statement or omission
made in any Disclosure Material (exclusive of the Prospectus or any corrected or
amended Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum (in either case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus or Memorandum (in either case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the written confirmation of the sale of such Certificates to such person, and
(z) in the case of a corrected or amended Prospectus or Memorandum, such
Underwriter or Initial Purchaser received electronically or in writing notice of
such untrue statement or omission and updated information concerning the untrue
statement or omission at least one Business Day prior to the written
confirmation of such sale. CWCapital shall, subject to clause (c) below,
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity will
be in addition to any liability which CWCapital may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-120922 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated August
11, 2005, as supplemented by the prospectus supplement dated August 11, 2005
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the prospectus
supplement dated July 28, 2005, relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated August 11, 2005, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class A-3SF, Class A-4, Class A-5, Class A-6A, Class A-6B, Class
A-PB, Class A-7, Class A-1A, Class A-MFL, Class A-MFX, Class A-J, Class B, Class
C and Class D Certificates; "Non-Registered Certificates" shall mean the
Certificates other than the Registered Certificates; "Computational Materials"
shall have the meaning assigned thereto in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "Xxxxxx Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx Letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact disc
attached to each of the Prospectus and the Memorandum; and "Data File" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letters dated August 23, 2005 and rendered
by KPMG LLP and Deloitte & Touche LLP (a "hard copy" of which Data File was
initialed on behalf of the Sellers and the Purchaser).
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchaser's obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of CWCapital and each person, if any who controls CWCapital within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and CWCapital agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchaser, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchaser, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchaser and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. Each Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) such Seller's pro rata
portion of the aggregate of the following amounts (such Seller's pro rata
portion to be determined according to the percentage that the CWCapital Mortgage
Loan Balance or the CWCMSI Mortgage Loan Balance, as applicable, represents as
of the Cut-Off Date Pool Balance): (i) the costs and expenses of printing and
delivering the Pooling and Servicing Agreement and the Certificates; (ii) the
costs and expenses of printing (or otherwise reproducing) and delivering a
preliminary and final Prospectus, Term Sheet and Memorandum relating to the
Certificates; (iii) the initial fees, costs, and expenses of the Trustee
(including reasonable attorneys' fees); (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of the cost of obtaining any "comfort letters"
with respect to such items; (vii) the reasonable out-of-pocket costs and
expenses in connection with the qualification or exemption of the Certificates
under state securities or "Blue Sky" laws, including filing fees and reasonable
fees and disbursements of counsel in connection therewith, in connection with
the preparation of any "Blue Sky" survey and in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters or Initial Purchaser; provided, however, each Seller shall pay (or
shall reimburse the Purchaser to the extent that the Purchaser has paid) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof with respect to such Seller's
Mortgage Loans. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the applicable
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by such Seller to the Purchaser and not as a pledge
of the Mortgage Loans by such Seller to the Purchaser to secure a debt or other
obligation of such Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of such
Seller, then, (a) it is the express intent of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by such Seller to the Purchaser to
secure a debt or other obligation of such Seller, and (b) (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article 9
of the Uniform Commercial Code of the applicable jurisdiction; (ii) the
conveyance provided for in Section 2 hereof shall be deemed to be a grant by
such Seller to the Purchaser of a security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans, and all amounts payable
to the holder of the Mortgage Loans in accordance with the terms thereof, and
all proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including, without limitation,
all amounts, other than investment earnings, from time to time held or invested
in the Certificate Account, the Distribution Account or, if established, the REO
Account (each as defined in the Pooling and Servicing Agreement) whether in the
form of cash, instruments, securities or other property; (iii) the assignment to
the Trustee of the interest of the Purchaser as contemplated by Section 1 hereof
shall be deemed to be an assignment of any security interest created hereunder;
(iv) the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel paper
shall be deemed to be possession by the secured party for purposes of perfecting
the security interest pursuant to Section 9-313 of the Uniform Commercial Code
of the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. Each Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Sellers with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of either Seller submitted pursuant hereto, shall remain operative and
in full force and effect and shall survive delivery of the Mortgage Loans by a
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 17. Further Assurances. Each Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 18. Successors and Assigns. The rights and obligations of
the Sellers under this Agreement shall not be assigned by either Seller without
the prior written consent of the Purchaser, except that any person into which a
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which a Seller is a party, or any person
succeeding to all or substantially all of the business of a Seller, shall be the
successor to such Seller hereunder. The Purchaser has the right to assign its
interest under this Agreement, in whole or in part, as may be required to effect
the purposes of the Pooling and Servicing Agreement, and the assignee shall, to
the extent of such assignment, succeed to the rights and obligations hereunder
of the Purchaser. Subject to the foregoing, this Agreement shall bind and inure
to the benefit of and be enforceable by the Sellers, the Purchaser, the
Underwriters and the Initial Purchaser (each as intended third party
beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, the Initial Purchaser and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP and Deloitte & Touche LLP in making available all information and
taking all steps reasonably necessary to permit such accountants to deliver the
letters required by the Underwriting Agreement.
IN WITNESS WHEREOF, the Sellers and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLERS
CWCAPITAL LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
with a copy to Xxxx Xxxxx
Telecopier No.: (000) 000-0000
CWCAPITAL MORTGAGE SECURITIES I LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Address for Notices:
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
with a copy to Xxxx Xxxxx
Telecopier No.: (000) 000-0000
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule I, the phrases "to the knowledge of
the Seller" or "to the Seller's knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. Also, for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. Upon consummation of the transactions contemplated by the Mortgage
Loan Purchase Agreement, the Seller will have validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to such
Mortgage Loan (other than those rights to servicing and related
compensation as reflected in the Mortgage Loan Schedule) free and clear of
any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an assignment of leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, prepayment premiums or
yield maintenance charges, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception", and collectively, the "Title Exceptions"): (a) the lien
of current real property taxes, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of the foregoing, no representation
is made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that prior to
the Cut-Off Date have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
comprehensive general liability insurance against claims for personal and
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property in an amount customarily required by prudent
commercial mortgage lenders, but not less than $1 million. An
architectural or engineering consultant has performed an analysis of each
of the Mortgaged Properties located in seismic zones 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475 year lookback with a 10% probability of exceedance
in a 50 year period. If the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained by an insurer
rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or Fitch. If the Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina such
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged
Property. Such insurance is required by the Mortgage or related Mortgage
Loan documents and was in full force and effect with respect to each
related Mortgaged Property at origination and to the knowledge of the
Seller, all insurance coverage required under each Mortgage or related
Mortgage Loan documents is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
related Mortgage Loan documents, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property with mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan and accrued interest thereon. To
the Seller's actual knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required. The insurance policies contain a standard mortgagee clause
naming the originator of the related Mortgage Loan, its successors and
assigns as loss payees in the case of property insurance policies and
additional insureds in the case of liability insurance policies and
provide that they are not terminable and may not be reduced without 30
days prior written notice to the mortgagee (or, with respect to
non-payment of premiums, 10 days prior written notice to the mortgagee) or
such lesser period as prescribed by applicable law. Each Mortgage or
related Mortgage Loan documents require that the Mortgagor maintain
insurance as described above or permits the mortgagee to require insurance
as described above, and permits the mortgagee to purchase such insurance
at the Mortgagor's expense if the Mortgagor fails to do so. Additionally,
for any Mortgage Loan having an unpaid principal balance equal to or
greater than $15,000,000, the Insurer has a claims paying ability rating
from S&P or Fitch of not less than "A-" (or the equivalent) or A.M. Best
of not less than "A-:V" (or the equivalent).
14. (A) Other than payments due but not yet 30 days or more delinquent, there
is no material default, breach, violation or event of acceleration
existing under the related Mortgage or the related Mortgage Note, and to
the Seller's actual knowledge no event (other than payments due but not
yet delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration, provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II, and (B) the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and no such waiver has
been granted since the later of: (a) the date upon which the due diligence
file related to the applicable Mortgage Loan was delivered to Cadim TACH
inc, or an affiliate, or (b) the date of the origination of such Mortgage
Loan, and pursuant to the terms of the related Mortgage or the related
Mortgage Note and other documents in the related Mortgage File no Person
or party other than the holder of such Mortgage Note may declare any event
of default or accelerate the related indebtedness under either of such
Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage or related Mortgage Loan documents do not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation except as expressly described in such
Mortgage or related Mortgage Loan documents.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3)of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan and if operated in accordance with Treasury Regulations
Section 1.856-6, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then either (i) an escrow of 100% or more of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
borrower has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related borrower or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation, (iii) the borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier or insurance broker issuing such
policy prior to the issuance of such policy. The Mortgage Loan documents
require the borrower to comply with all applicable environmental laws and
each Mortgagor has agreed to indemnify the mortgagee for any losses
resulting from any material, adverse environmental condition or failure of
the Mortgagor to abide by such laws or has provided environmental
insurance.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, redemption, liquidation or similar law affecting
the right of creditors and the application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except in respect to each Co-Lender
Loan) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest.
23. The Mortgage or related Mortgage Loan documents contain a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the prior written
consent of the holder of the Mortgage, either the related Mortgaged
Property, or any equity interest in the related Mortgagor, is directly or
indirectly transferred, sold or pledged, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest (as such term is defined in the related Mortgage Loan documents)
in the Mortgagor, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to Crossed
Loans or multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan (such as
pledges of ownership interests that do not result in a change of control).
The Mortgage or related Mortgage Loan documents require the Mortgagor to
pay all reasonable fees and expenses associated with securing the consents
or approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to Cadim TACH inc., or an affiliate.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12 month period prior to the
related origination date.
26. Since origination, no material portion of the related Mortgaged Property
has been released from the lien of the related Mortgage, in any manner
which materially and adversely affects the value of the Mortgage Loan or
materially interferes with the security intended to be provided by such
Mortgage. The terms of the related Mortgage or related Mortgage Loan
documents do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor of not less than 125% of the related
allocated loan amount of such Mortgaged Property, (b) upon payment in full
of such Mortgage Loan, (c) upon defeasance permitted under the terms of
such Mortgage Loan by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities", as defined in the Investment Company Act of 1940, as amended,
sufficient to pay the Mortgage Loan in accordance with its terms, (d) upon
substitution of a replacement property with respect to such Mortgage Loan
as set forth on Schedule 26, (e) where release is conditional upon the
satisfaction of certain objective underwriting and legal requirements, the
satisfaction of which would be acceptable to a reasonably prudent
commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property
or (f) releases of unimproved out-parcels or other portions of the
Mortgaged Property which will not have a material adverse effect on the
underwritten value of the security for the Mortgage Loan and which were
not afforded any value in the appraisal obtained at the origination of the
Mortgage Loan.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws constitutes a legal
non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts customarily required by
prudent commercial mortgage lenders, or such non-conformity does not
materially and adversely affect the use, operation or value of the
Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for
the purposes of determining the appraised value of the related Mortgaged
Property at the time of the origination of the Mortgage Loan lies outside
of the boundaries and building restriction lines of such property (except
Mortgaged Properties which are legal non-conforming uses), to an extent
which would have a material adverse affect on the value of the Mortgaged
Property or related Mortgagor's use and operation of such Mortgaged
Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or, if so located, the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect in an amount no less than the lesser of (i) the original
principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the borrower to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor who is a natural person
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
42. With respect to such Mortgage Loan, any prepayment premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the Mortgage Loan
documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. Each Mortgage or related Mortgage Loan documents require the Mortgagor
upon request to provide the owner or holder of the Mortgage with quarterly
(except for some Mortgage Loans with an original principal balance less
than $5,000,000) and annual operating statements (or a balance sheet and
statement of income and expenses, rent rolls (if there is more than one
tenant) and related information, which annual financial statements for all
Mortgage Loans with an outstanding principal balance greater than
$20,000,000 are required to be audited by an independent certified public
accountant.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to (i) or (ii), to the extent required by
such policy or to the extent the failure to make any such disclosure
or deliver any such report would materially and adversely affect the
Mortgagor's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect;
(d) such insurance has a term of at least 5 years beyond the
maturity date (or the Anticipated Repayment Date for ARD
Loans) of such Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment
for lead-based paint ("LBP") (in the case of a multifamily
property built prior to 1978), asbestos-containing materials
("ACM") (in the case of any property built prior to 1985) and
radon gas ("RG") (in the case of a multifamily property) at
such Mortgaged Property and (ii) if such report disclosed the
existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting such
Mortgaged Property, then, except as otherwise described on
Schedule II, (A) the related Borrower was required to
remediate such condition or circumstance prior to the closing
of the subject Mortgage Loan, or (B) the related Borrower was
required to provide additional security reasonably estimated
to be adequate to cure such condition or circumstance, or (C)
such report did not recommend any action requiring the
expenditure of any material funds and the related Mortgage
Loan documents require the related Borrower to establish an
operations and maintenance plan with respect to such condition
or circumstance after the closing of such Mortgage Loan; and
(f) rights under such policy inure to the benefit of the
Purchaser.
SCHEDULE II
CWCapital LLC
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exception to Representation 3
-----------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 87, 95, 96, 100, 101 and The Mortgage Loan is subject to the
108 (U-Haul Portfolio) terms and conditions of an
intercreditor agreement between the
Mortgage Loan Seller and the holder of
six promissory notes that are pari
passu with the promissory note
evidencing the Mortgage Loan notes.
Exception to Representation 8
-----------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 87, 95, 96, 100, 101 and The Mortgaged Property securing the
108 (U-Haul Portfolio) Mortgage Loan also secures six
promissory notes that are pari passu
with the promissory note evidencing the
Mortgage Loan; the six pari passu notes
are not assets of the Trust.
Exception to Representation 12
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 87, 95, 96, 100, 101 and The title policy was issued in favor
108 (U-Haul Portfolio) of the originator of the Mortgage Loan
and the related non-trust pari passu
promissory notes, and the original
principal amount of the title policy is
the aggregate original principal
balance of the Mortgage Loan and the
non-trust pari passu promissory notes.
Exception to Representation 40
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 87, 95, 96, 100, 101 and The additional guarantor is not a
108 (U-Haul Portfolio) natural person.
SCHEDULE III
CWCapital Mortgage Securities I LLC
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exception to Representation 13
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 35, 36, 43, 44, 53 and 68 Although the insurance policies
(13700 Northwest 115th Avenue, 536 provide for the requisite amount of
Fayette Street, 000 Xxxxxxxxx Xxxxx notice in the event of a termination
(Raynham), 0000 Xxxxx Xxxxx Xxxxxx or modification, pursuant to each
(Chicago), 0000 Xxxx 00xx Xxxxxx Borrower's lease with the single
(Xxxxxx) and Xxx Xxxxxxxxxx Xxxxxx tenant at the related Mortgaged
(Sharon), respectively) Property, the insurance requirements
of which supersede the provisions of
the related Mortgage, only 10 days'
notice of the termination or amendment
of an insurance policy is required to
be given to the mortgagee.
Exception to Representation 23
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Xx. 00 (Xxxxxx Xxxx & Xxxxxx Xxxxxxxx is not required to pay any
Stage Shopping Center) fees in connection with transfers of
interests in Borrower, its managing
member or the managing member's
partners in accordance with the loan
documents.
Exception to Representation 26
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Xx. 00 (Xxxxxx Xxxxxx) Borrower is permitted to have a
portion of the Mortgaged Property on
which the Cozymel Restaurant is
located released, subject to, among
other things, payment of a release
price of 100% of the related allocated
loan amount for the portion of the
Mortgaged Property released.
Loan Xx. 00 (Xxxxxx Xxxx & Xxxxxx Xxxxxxxx is permitted to obtain the
Stage Shopping Center) release of an individual Mortgaged
Property conditioned upon, among other
things, payment of a release price of
115% of the related allocated loan
amount for such Mortgaged Property.
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Xx. 00 (Xxxxxxxxxx Xxxxxx) Borrower is permitted to obtain the
release of an individual Mortgaged
Property conditioned upon, among other
things, payment of a release price of
115% of the related allocated loan
amount for such Mortgaged Property.
Exception to Representation 40
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Nos. 35, 36, 43, 44, 53, 64 The additional guarantor is not a
and 68 (13700 Northwest 115th natural person.
Avenue (Medley), 000 Xxxxxxx Xxxxxx
(Perth), 000 Xxxxxxxxx Xxxxx
(Xxxxxxx), 0000 Xxxx 00xx Xxxxxx
(Veron), Xxxxxx City & Centre Stage
Shopping Center and One Commercial
Street (Sharon), respectively)
Loan Nos. 113, 124 and 138 (West The additional guarantor on the
Airline, Clearview and Xxxxxx environmental indemnity is not a
Cotton Press, respectively) natural person
Exception to Representation 50
------------------------------
Mortgage Loan Exception
----------------------------------- ---------------------------------------
Loan Xx. 00 (Xxxxxx Xxxxxx) The loan documents require the
Borrower to deliver financial
statements audited by an independent
certified public accountant only after
an Event of Default has occurred.
EXHIBIT A-1
CWCapital LLC Mortgage Loan Schedule
Mortgage Loan
Loan Group Property Zip
Number Number Name Address City State Code
------------------------------------------------------------------------------------------------------------------------------------
87 1 U-Haul 3(1) Various Various Various Various
95 1 U-Haul 4(1) Various Various Various Various
96 1 U-Haul 5(1) Various Various Various Various
100 1 U-Haul 6(1) Various Various Various Various
101 1 U-Haul 7(1) Various Various Various Various
108 1 U-Haul 8(1) Various Various Various Various
Cut-Off
Date Monthly
Mortgage Loan P&I Mortgage Number
Loan Balance Payments Grace Rate of
Number County ($) ($) Days (%) Units
------------------------------------------------------------------------------------------------------------------------------------
87 Various 8,817,464.15 54,328.34 5 5.5200% 581,065
95 Various 7,599,797.44 46,825.75 5 5.5200% 630,635
96 Various 7,519,146.71 46,328.83 5 5.5200% 593,962
100 Various 7,197,988.56 44,350.03 5 5.5200% 508,366
101 Various 7,157,664.13 44,101.57 5 5.5200% 544,006
108 Various 6,644,961.91 40,942.58 5 5.5200% 558,315
Original Remaining
Term Term
to to
Maturity Maturity Maturity Original Remaining Master
Mortgage Unit or or Date Amort Amort Servicing Anticipated Additional
Loan of ARD ARD or Term Term Ground Fee ARD Repayment Interest
Number Measure (Mos.) (Mos.) ARD (Mos.) (Mos.) Lease Rate Loans Date Rate
------------------------------------------------------------------------------------------------------------------------------------
87 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
95 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
96 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
100 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
101 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
108 Sq. Ft. 120 119 07/01/15 300 299 Fee 0.03000% N
Cross
Collateralized
and Annual
Cross Deposit
Mortgage Defaulted Defeasance Secured Interest to
Loan Loan Environmental Loan Loan Early by Accrual Replacement
Number Originator Insurance Flag (Y/N) Defeasance LC Method Lockbox Reserve
------------------------------------------------------------------------------------------------------------------------------------
87 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 87,160
95 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 97,702
96 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 89,095
100 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 76,256
101 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 81,601
108 CWCapital N U-Haul Portfolio Y N N Actual/360 Day 1 83,747
Initial
Deposit
to
Mortgage Capital Initial Ongoing
Loan Improvements TI/LC TI/LC
Number Reserve Escrow Footnote
------------------------------------------------------------------------------------------------------------------------------------
87 295,549 (2)
95 606,890 (2)
96 330,980 (2)
100 733,010 (2)
101 479,201 (2)
108 667,996 (2)
(1) Eleven (11) Mortgage Loans, representing 20.4% of the Cut-Off Date Pool
Balance, are part of a split loan structure and the related pari passu companion
loans are not included in the trust fund. With respect to these Mortgage Loans,
unless otherwise specified, the calculations of LTV ratios, DSC ratios and Loan
Amount per Unit were are based upon the aggregate indebtedness of these Mortgage
Loans (treating the U-Haul Portfolio loans as a single loan) and the related
pari passu companion loans.
(2) In addition to any such escrows funded at loan closing for potential TI/LC,
these Mortgage Loans require funds to be escrowed during some or all of the loan
term for TI/LC expenses, which may be incurred during the loan term. In certain
instances, escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
EXHIBIT A-2
CWCapital Mortgage Securities I LLC Mortgage Loan Schedule
Mortgage Loan
Loan Group Property
Number Number Name
------------------------------------------------------------------------------------------------------------------------------------
24 0 Xxxxxx Xxxxxx
35 1 00000 Xxxxxxxxx 000xx Xxxxxx (Xxxxxx)
36 1 000 Xxxxxxx Xxxxxx (Perth)
43 1 000 Xxxxxxxxx Xxxxx (Raynham)
44 1 0000 Xxxxx Xxxxx Xxxxxx (Xxxxxxx)
53 1 0000 Xxxx 00xx Xxxxxx (Xxxxxx)
64 1 Xxxxxx City & Centre Stage Shopping Centers
64.01 Centre Stage Shopping Center
64.02 Xxxxxx City Square Shopping Center
68 1 One Commercial Street (Xxxxxx)
71 1 Arrow Parking Garage
88 2 Vista De San Jacinto
89 1 Westlinks 11, 12, 14 & 15
97 0 Xxxxxxxxxx Xxxxxx
000 0 Xxxxxx Xxxx Apartments
112 1 Backlick Shopping Center
113 1 West Airline
124 1 Clearview
127 1 Westlinks 4 & 5
130 1 Prosperity Center
131 1 The Depot Building
135 1 Xxxxx Properties
135.01 Duxbury Properties
135.02 Stoughton Properties
136 1 21 West Shopping Center
137 1 Judicial Drive Building
138 1 Xxxxxx Xxxxxx Press
144 1 Sacramento Center II Shopping Center
145 1 Northglen Shopping Center
149 2 San Mateo Apartments
155 1 Spring Xxxx Xxxxxx
000 0 Xxxxxxxx Xxxxx
000 0 CVS - Shelby
192 1 Sacramento Center I Shopping Center
204 2 Cornerstone Apartments
Mortgage
Loan Zip
Number Address City State Code
------------------------------------------------------------------------------------------------------------------------------------
24 000-000 Xxxxxx Xxxxxx; 0000 Xxxxxxxxx Xxxxxx Xx Xxxxxxx XX 00000
35 00000 Xxxxxxxxx 000xx Xxxxxx Xxxxxx XX 00000
36 000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
43 000 Xxxxxxxxx Xxxxx Xxxxxxx XX 00000
44 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000
53 0000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000
64 Various Various Various Various
64.01 0000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
64.02 000 Xxxxxxx 00 Xxxx Xxxxxx XX 00000
68 Xxx Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000
71 000 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
88 000 Xxxxx Xxxxxx Xxxxxxxxx Xxx Xxxxxxx XX 00000
89 13100, 13120, 00000 Xxxxxxxxx Xxxxxxx; 00000 Xxxxxxxxxxxx Xxxxx Xx. Xxxxx XX 00000
97 0000-0000 Xxxxxx Xxxx Xxxxxxx Xxxxx XX 00000
107 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000
112 0000-0000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
113 00000 Xxxx Xxxxxxx Xxxxxxx Xx. Xxxx XX 00000
124 0000 Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
127 12600 & 00000 Xxxxxxxxx Xxxxx Xxxx Xxxxx XX 00000
130 000-000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000
131 000 Xxxxx Xxxxx Xxxxxxxx XX 00000
135 Various Various MA Various
135.01 20, 40, 00 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
135.02 000 Xxxx Xxxxxx, 00 Xxxx Xxxxxxx Xxxxxxxxx XX 00000
136 000-000 00xx Xxxxxx Xxxxxxx XX 00000
137 00000 Xxxxxxxx Xxxxx Xxxxxxx XX 00000
138 0000 Xxxxxxxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000
144 8794-8796 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
145 13904-14038 Xxxxxxxxxxx Xxxx Xxx Xxxxxxx XX 00000
149 000-000 Xxxxxxx Xxxxxx Xx Xxxxx XX 00000
155 0000 Xxxxxxxx Xxxx Xxxxxxxxxxx XX 00000
157 14310-14408 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
000 XXX 00 Xxxx & Xxxxx Xxxxxx Xxxxxxxx XX 00000
192 8790-8794 Xxxxxxxxxx Xxxxx Xxxxxxxxxx XX 00000
204 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxxx XX 00000
Original Remaining
Term Term
Cut-Off to to
Date Monthly Maturity Maturity Maturity Original
Mortgage Loan P&I Mortgage Number Unit or or Date Amort
Loan Balance Payments Grace Rate of of ARD ARD or Term
Number County ($) ($) Days (%) Units Measure (Mos.) (Mos.) ARD (Mos.)
------------------------------------------------------------------------------------------------------------------------------------
24 Los Angeles 32,966,495.79 181,043.54 5 5.1920% 191663 Sq. Ft. 120 119 07/01/15 360
35 Miami-Dade 21,731,250.00 120,135.40 5.2600% 176,100 Sq. Ft. 120 120 08/01/15 360
36 Middlesex 21,443,250.00 118,543.27 5.2600% 243,350 Sq. Ft. 120 120 08/01/15 360
43 Bristol 17,688,000.00 97,783.38 5.2600% 111,623 Sq. Ft. 120 120 08/01/15 360
44 Xxxx 17,327,250.00 95,789.07 5.2600% 128,200 Sq. Ft. 120 120 08/01/15 360
53 Los Angeles 15,883,500.00 87,807.68 5.2600% 103,050 Sq. Ft. 120 120 08/01/15 360
64 Various 13,200,000.00 84,881.80 5 5.6410% 302,639 Sq. Ft. 120 116 04/01/15 280
64.01 Xxxxxxxxx 147,483 Sq. Ft.
64.02 XxXxxxxx 155,156 Sq. Ft.
68 Norfolk 12,201,750.00 67,454.11 5.2600% 95,537 Sq. Ft. 120 120 08/01/15 360
71 Baltimore 12,000,000.00 71,344.48 5 5.1700% 669 Spaces 120 120 08/01/15 300
88 Riverside 8,750,000.00 48,128.31 5 5.2150% 157 Units 120 120 08/01/15 360
89 Xxx 8,600,000.00 47,383.04 5 5.2300% 112,665 Sq. Ft. 120 120 08/01/15 360
97 DuPage County 7,500,000.00 42,485.41 5.4790% 56,140 Sq. Ft. 120 119 07/01/15 360
107 Xxxxxxxxxx 6,685,799.79 37,309.50 5 5.3250% 144 Xxxxx 000 000 00/00/00 000
000 Xxxxxxx 6,471,529.55 35,656.08 5 5.1910% 53,377 Sq. Ft. 120 116 04/01/15 360
000 Xx. Xxxxxxx 6,440,177.56 37,943.19 5.0630% 256,166 Sq. Ft. 120 119 07/01/15 300
124 Jefferson 5,391,686.65 31,577.30 5.0030% 162,000 Sq. Ft. 120 119 07/01/15 300
127 Xxx 5,275,000.00 30,455.86 5 5.6520% 136,365 Sq. Ft. 120 117 05/01/15 360
130 Loudoun 5,077,661.64 27,976.31 5 5.1910% 64,448 Sq. Ft. 120 116 04/01/15 360
131 Loudoun 5,075,000.00 IO 5 5.4390% 25,500 Sq. Ft. 60 58 06/01/10 IO
135 Various 4,990,060.40 28,776.51 10 5.6230% 61,112 Sq. Ft. 120 118 06/01/15 360
135.01 Plymouth 35,154 Sq. Ft.
135.02 Norfolk 25,958 Sq. Ft.
136 Norfolk 4,800,000.00 28366 5 5.8660% 28,716 Sq. Ft. 120 117 05/01/15 360
000 Xxxxxxx 4,787,005.76 28,581.22 5 5.9360% 34,185 Sq. Ft. 120 117 05/01/15 360
138 Orleans 4,632,830.81 27,079.04 4.9830% 92,000 Sq. Ft. 120 119 07/01/15 300
000 Xxxxxxx 4,330,946.73 23,862.14 5 5.1910% 46,784 Sq. Ft. 120 116 04/01/15 360
145 Bexar 4,300,000.00 24,239.85 5.4350% 74,896 Sq. Ft. 120 118 06/07/15 360
149 San Diego 4,150,000.00 23,563.24 5 5.5000% 80 Xxxxx 000 000 00/00/00 000
000 Xxxxxxx 3,982,479.73 21,942.20 5 5.1910% 22,837 Sq. Ft. 120 116 04/01/15 360
157 Los Angeles 3,794,357.23 25,247.09 6.0500% 52,977 Sq. Ft. 120 101 01/01/14 300
163 Macomb 3,567,739.23 20,352.32 5 5.5240% 13,013 Sq. Ft. 120 118 06/01/15 360
000 Xxxxxxx 2,190,363.85 12,068.21 5 5.1910% 37,682 Sq. Ft. 120 116 04/01/15 360
204 Xxxxxxxxxx 1,428,522.95 7,781.76 5.1200% 32 Units 120 119 07/01/15 360
Remaining Master
Mortgage Amort Servicing Anticipated
Loan Term Ground Fee ARD Repayment
Number (Mos.) Lease Rate Loans Date
------------------------------------------------------------------------------------------------------------------------------------
24 359 Fee 0.04000% N
35 360 Fee 0.04000% N
36 360 Fee 0.04000% N
43 360 Fee 0.04000% N
44 360 Fee 0.04000% N
53 360 Fee 0.04000% N
64 280 Fee 0.04000% N
64.01 Fee
64.02 Fee
68 360 Fee 0.04000% N
71 300 Fee 0.04000% N
88 360 Fee 0.06000% N
89 360 Fee 0.06000% N
97 360 Fee 0.06000% N
107 358 Fee 0.06000% N
112 356 Fee 0.06000% N
113 299 Fee 0.06000% N
124 299 Fee 0.06000% N
127 360 Fee 0.06000% N
130 356 Fee 0.06000% N
131 IO Fee 0.06000% Y 06/01/10
135 358 Fee 0.06000% N
135.01 Fee
135.02 Fee
136 360 Fee 0.06000% N
137 357 Fee 0.06000% N
138 299 Fee 0.06000% N
144 356 Fee 0.06000% N
145 360 Fee 0.06000% N
149 360 Fee 0.06000% N
155 356 Fee 0.06000% N
157 281 Fee 0.06000% N
163 358 Fee 0.06000% Y 06/01/15
192 356 Fee 0.06000% N
204 359 Fee 0.06000% N
Cross
Collateralized
and
Cross
Mortgage Additional Defaulted
Loan Interest Loan Environmental Loan
Number Rate Originator Insurance Flag
------------------------------------------------------------------------------------------------------------------------------------
24 CWCapital N
35 CWCapital N
36 CWCapital N
43 CWCapital N
00 XXXxxxxxx X
00 XXXxxxxxx X
00 XXXxxxxxx X
64.01
64.02
00 XXXxxxxxx X
00 XXXxxxxxx X
88 CWCapital N
89 CWCapital N
00 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
130 CWCapital N
131 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% CWCapital N
135 CWCapital N
135.01
135.02
000 XXXxxxxxx X
000 XXXxxxxxx X
138 CWCapital N
000 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
000 XXXxxxxxx X
157 CWCapital N
163 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0% CWCapital N
192 CWCapital N
204 CWCapital N
Initial
Annual Deposit
Deposit to
Mortgage Defeasance Secured Interest to Capital Initial Ongoing
Loan Loan Early by Accrual Replacement Improvements TI/LC TI/LC
Number (Y/N) Defeasance LC Method Lockbox Reserve Reserve Escrow Footnote
------------------------------------------------------------------------------------------------------------------------------------
24 Y N N Actual/360 50,172 238,656 17,895 (1)
35 Y N N Actual/360 Day 1
36 Y N N Actual/360 Day 1 35,000
43 Y N N Actual/360 Day 1
44 Y N N Actual/360 Day 1
53 Y N N Actual/360 Day 1
64 Y N N Actual/360 45,216 90,625 10,531 (1)
64.01
64.02
68 Y N N Actual/360 Day 1
71 Y N N Actual/360 Day 1 33,456
88 Y N N Actual/360 39,252
89 Y N N Actual/360 16,896 7,544 (1)
97 Y N N Actual/360 11,228 16,313 2,606 (1)
107 Y N N Actual/360 40,956 96,000
112 Y N N Actual/360
113 Y N N Actual/360 Day 1 38,424 216,000 (1)
124 Y N N Actual/360 Day 1 43,740
127 Y N N Actual/360 20,448 4,589 (1)
130 Y N N Actual/360
131 Y N N Actual/360 Day 1 9,180 3,560 (1)
135 Y N N Actual/360 10,224 150,000 (1)
135.01
135.02
136 Y N N Actual/360 4,308 60,294 2,762 (1)
137 Y N N Actual/360 Day 1 6,840 (1)
138 Y N N Actual/360 Day 1 13,800 161,000 (1)
144 Y N N Actual/360
145 Y N N Actual/360 Day 1 14,976 100,000 (1)
149 Y N N Actual/360 Day 1 20,004
155 Y N N Actual/360
157 Y N N Actual/360 Day 1 11,664 6,875 270,000 (1)
163 Y N N Actual/360 Day 1 18,500
192 Y N N Actual/360
204 Y N N Actual/360 9,540
(1) In addition to any such escrows funded at loan closing for potential TI/LC,
these Mortgage Loans require funds to be escrowed during some or all of the loan
term for TI/LC expenses, which may be incurred during the loan term. In certain
instances, escrowed funds may be released to the borrower upon satisfaction of
certain leasing conditions.
