EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of November 8, 2006, between CITIGROUP GLOBAL MARKETS REALTY CORP., as seller
(the "Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated as of November 1, 2006, among CCMSI, as depositor,
Midland Loan Services, Inc. and Wachovia Bank, National Association, as master
servicers (each a "Master Servicer" and, together, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer"), Xxxxx Fargo Bank,
National Association, as trustee (the "Trustee") and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator").
Capitalized terms used herein (including the schedules attached hereto) but not
defined herein (or in such schedules) have the respective meanings set forth in
the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
LaSalle Financial Services, Inc., PNC Capital Markets LLC and Banc of America
Securities LLC (collectively, the "Dealers"), pursuant to an underwriting
agreement dated as of the date hereof (the "Underwriting Agreement"), between
CCMSI and the Dealers. The Publicly Offered Certificates are more particularly
described in a prospectus supplement dated November 8, 2006 (the "Prospectus
Supplement") and the accompanying base prospectus dated June 8, 2006 (the "Base
Prospectus" and, together with the Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI, pursuant to a
certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI and CGMI. The Privately Offered Certificates
are more particularly described in an offering memorandum dated November 8, 2006
(the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Xxxxx'x Investors Service, Inc. and/or Fitch, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $905,040,675 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The Seller 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
$2,238,772,692 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on November 21, 2006 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of a cash amount, payable in immediately available
funds, as reflected on the settlement statement agreed to by the Seller and the
Purchaser, which amount shall include interest accrued on the Seller Mortgage
Loan Balance for the period from and including the Cut-off Date up to but not
including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the Aggregate Purchase Price and satisfaction or waiver of the other
conditions to closing that are for the benefit of the Seller, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse (except as set forth in this Agreement), all the right, title
and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing-released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance and any escrow,
reserve or comparable accounts related to the Mortgage Loans, subject, in the
case of any Mortgage Loan that is part of a Loan Combination, to the rights of
the holder(s) of any other mortgage loan(s) in the related Loan Combination in
such proceeds and reserve or comparable accounts, and further subject to the
understanding that the Seller will sell certain servicing rights to the
applicable Master Servicer pursuant to that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date, between such Master Servicer and the
Seller, and may require that a particular primary servicer remain in place with
respect to any or all of the Mortgage Loans.
(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
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Mortgage Loans due on or before the Cut-off Date). All scheduled payments of
principal and interest due on or before the Cut-off Date but collected after the
Cut-off Date, and recoveries of principal and interest collected on or before
the Cut-off Date (only in respect of principal and interest on the Mortgage
Loans due on or before the Cut-off Date and principal prepayments thereon),
shall belong to, and shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a copy to the
applicable Master Servicer and the Special Servicer within ten (10) Business
Days after the Closing Date) the documents and instruments specified below under
clauses (i), (ii), (vii), (ix)(A) and (xi)(D) and shall, not later than the date
that is 30 days after the Closing Date, deliver or cause to be delivered to the
Trustee (with a copy to the applicable Master Servicer) the remaining documents
and instruments specified below, in each case with respect to each Mortgage Loan
that is a Serviced Trust Mortgage Loan (the documents and instruments specified
below, collectively, the "Mortgage File"). The Mortgage File for each Serviced
Trust Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage Loan
(including any A-Note Trust Mortgage Loan), 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 "Xxxxx Fargo Bank, National
Association., as trustee for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C5, Commercial Mortgage Pass-Through Certificates,
Series 2006-C5", or in blank (or a lost note affidavit and indemnity with a
copy of such Mortgage Note attached thereto) or (B) in the case of any
B-Note Non-Trust Mortgage Loan, a copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with any
and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank, the name
of the assignee), of (A) the Mortgage, (B) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (C) any other
recorded document relating to the subject Mortgage Loan otherwise included
in the Mortgage File, in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2006-C5, Commercial Mortgage Pass-Through Certificates, Series
2006-
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C5" (and, in the case of an A/B Loan Combination, also on behalf of the
related B-Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Trust Mortgage Loan (to the extent not already assigned pursuant to
clause (iii) above), in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2006-C5, Commercial Mortgage Pass-Through Certificates, Series
2006-C5" (and, in the case of an A/B Loan Combination, also on behalf of
the related B-Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or specimen version of, or a marked commitment for, the
policy that has been executed by an authorized representative of the title
company or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company)
to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements when it
was to deliver the subject Mortgage File on or prior to the Closing Date),
unless not yet returned by the applicable filing office; and, if there is
an effective UCC Financing Statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original UCC
Financing Statement assignment, in form suitable for filing in favor of
"Xxxxx Fargo Bank, National Association, as trustee for the registered
holders of Citigroup Commercial Mortgage Trust 2006-C5, Commercial Mortgage
Pass-Through Certificates, Series 2006-C5" (and, in the case of any A/B
Loan Combination, also on behalf of the related B-Noteholder(s)), as
assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) lender's environmental
insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to a Trust Mortgage
Loan (with the original of any such letter of credit to be delivered to the
applicable Master Servicer).
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With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
each of the other Crossed Loans in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller shall take all actions reasonably necessary to permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement, including bearing the out-of-pocket costs and
expenses of the Trustee in connection with the performance by the Trustee of its
recording, filing and delivery obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications
and internal correspondence, credit underwriting or due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan and that are not required to
be part of the Mortgage File in accordance with the definition thereof
(including, without limitation, any original letters of credit relating to any
Mortgage Loan); and (ii) within two (2) Business Days after the Closing Date,
any and all escrow amounts and reserve amounts in the Seller's possession or
under its control that relate to the Mortgage Loans.
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller which secure any Mortgage Loan. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of New York and possesses
all requisite
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authority, power, licenses, permits and franchises to carry on its business
as currently conducted by it and to execute, deliver and comply with its
obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement which purport to provide indemnification from liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the financial condition or the
operations of the Seller or its properties (taken as a whole) or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment,
order, writ, injunction, decree, law or regulation that would, in the
Seller's reasonable and good faith judgment, materially and adversely
affect the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the execution
of this Agreement or the performance by the Seller of its obligations under
this Agreement (except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of
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the transactions involving the Seller contemplated by this Agreement except
as have previously been obtained, and no bulk sale law applies to such
transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
contemplated by this Agreement. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedules III and IV. References in this Agreement to "Breach" mean a breach of
any such representations and warranties made pursuant to this Section 3(b) with
respect to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (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 ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, 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) 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 applicable Master Servicer for deposit into its Collection Account, any
Substitution Shortfall Amount in connection therewith; provided that, if a
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, then unless such
Document Defect or Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, such Seller shall have an additional 90 days to complete such cure
(or,
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failing such cure, to repurchase or substitute for the related Mortgage Loan);
and provided, further, that with respect to such additional 90-day period the
Seller shall have delivered an officer's certificate to the Trustee setting
forth what actions the Seller is pursuing in connection with the cure thereof
and stating that the Seller anticipates that such Document Defect or Breach will
be cured within the additional 90-day period; and provided, further, that if the
cure of any Document Defect or Breach would require an expenditure on the part
of the Seller in excess of $10,000, then the Seller may, at its option, within
the time period provided above, elect to purchase or replace the affected
Mortgage Loan in accordance with this Section 3 without attempting to cure such
Document Defect that, to the Seller's knowledge, existed as of the Closing Date,
or Breach, as the case may be. For a period of two years from the Closing Date,
so long as there remains any Mortgage File relating to a Mortgage Loan as to
which there is an uncured Document Defect that shall materially and adversely
affect the value of the applicable Mortgage Loan or the interests of the
Certificateholders therein, the Seller shall provide the officer's certificate
to the Trustee described above as to the reasons such Document Defect remains
uncured and as to the actions being taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of or
substitution for the affected Crossed Loan only, including, without limitation,
any modification required with respect to such repurchase or substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or substitution for
the affected Crossed Loan only shall satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein or in the
Pooling and Servicing Agreement. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the
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cost of any Appraisal required to be obtained by the applicable Master Servicer
to determine if the Crossed Loan Repurchase Criteria have been satisfied, so
long as the scope and cost of such Appraisal has been approved by the Seller
(such approval not to be unreasonably withheld). To the extent that the Seller
is required to purchase or substitute for a Crossed Loan hereunder in the manner
prescribed above while the Purchaser continues to hold any other Crossed Loans
in such Crossed Group, neither the Seller nor the Purchaser shall enforce any
remedies against the other's Primary Collateral, but each is permitted to
exercise remedies against the Primary Collateral securing its respective Crossed
Loans, including, with respect to the Purchaser, the Primary Collateral securing
the Crossed Loans still held by the Purchaser, so long as such exercise does not
materially impair the ability of the other party to exercise its remedies
against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section 3(d),
if there is a Document Defect or Breach (which Document Defect or Breach shall
materially and adversely affect the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation
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that such release would not cause the then-current ratings of the Certificates
rated by it to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master Servicer and the
Special Servicer shall release to the Seller any Escrow Payments and Reserve
Funds held by it in respect of such repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the full corporate power and authority and legal right to acquire the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or
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that requires the consent of any third person to the execution of this Agreement
or the performance by the Purchaser of its obligations under this Agreement
(except to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (i) any term or provision of the
Purchaser's articles of association or bylaws, (ii) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets, which default
might have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would, in
the Purchaser's reasonable and good faith judgment, materially and adversely
affect the validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or 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.
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SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP, New York, New York
on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in Section 6 of
this Agreement (the "Closing Documents"), in such forms as are agreed upon and
acceptable to CCMSI, the Seller, the Dealers and their respective counsel in
their reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released to
the Trustee (or a Custodian on its behalf) and the applicable Master Servicer,
respectively, all documents represented to have been or required to be delivered
to the Trustee and such Master Servicer on or before the Closing Date pursuant
to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall each have the ability
to comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) Letters from an independent accounting firm reasonably acceptable
to CCMSI and the Seller in form satisfactory to CCMSI, relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus, the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated the
Closing Date, and upon which CCMSI and the Dealers may rely, to the effect that:
(i) the representations
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and warranties of the Seller in this Agreement and the Indemnification 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, subject, in the case of the
representations and warranties made by the Seller pursuant to Section 3(b) of
this Agreement, to the exceptions to such representations and warranties set
forth in Schedules III and IV to this Agreement; and (ii) the Seller has, in all
material respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing Date,
and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) True and complete copies of the certificate of incorporation and
by-laws of the Seller (as certified to by the Secretary or an assistant
secretary of the Seller), and a certificate of good standing of the Seller
issued by the State of New York not earlier than thirty (30) days prior to the
Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the Dealers and
the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies;
(f) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the sale of the Mortgage Loans by the Seller to
the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion may
be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
reasonably satisfactory to the Seller and its counsel, dated the Closing Date
and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Seller Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding, to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
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expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (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, the Other Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and other customary
offering materials, including 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 Dealers. All other costs and
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (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 in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, 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, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of
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perfecting such security interest under applicable law. The Seller and the
Purchaser shall, to the extent consistent with this Agreement, take such actions
as may be necessary to ensure that, if this Agreement were deemed to create a
security interest in the Mortgage Loans, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement and the Pooling
and Servicing Agreement, and in connection therewith the Seller authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code financing
statements.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto 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 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
15
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party 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 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. 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 18. Accountants' Letters. The parties hereto shall cooperate
with accountants designated by CCMSI and reasonably acceptable to the Seller in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge", such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
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SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
CITIGROUP GLOBAL MARKETS REALTY CORP.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE SECURITIES
INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of the
Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the interest
(exclusive of any default interest, late charges or prepayment premiums)
contracted for thereunder, 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, including those pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good title to, and was the sole owner of, each Mortgage Loan and
the Seller is transferring such Mortgage Loan free and clear of any and all
liens, pledges, charges or security interests of any nature encumbering such
Mortgage Loan, but subject to certain agreements regarding servicing as provided
in the Pooling and Servicing Agreement, subservicing agreements permitted
thereunder and that certain Servicing Rights Purchase Agreement dated as of the
Closing Date between the applicable Master Servicer and the Seller. Upon
consummation of the transactions contemplated by the Mortgage Loan Purchase
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan free
and clear of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed (except to
the extent that a portion of such proceeds is being held in escrow or reserve
accounts) and there is no requirement for future advances thereunder by the
Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by the Mortgagor in connection with such Mortgage Loan
is a legal, valid and binding obligation of the related Mortgagor (subject to
any non-recourse provisions therein and any state anti-deficiency or market
value limit deficiency legislation), enforceable in accordance with its terms,
except (a) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or federal
laws, but neither the application of any such laws to any such provision nor the
inclusion of any such provisions renders any of the Mortgage Loan documents
invalid as a whole and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical realization
of the principal rights and benefits afforded thereby and (b) as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law). The related Mortgage Note and Mortgage contain no
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provision limiting the right or ability of the Seller to assign, transfer and
convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in connection
therewith, and, as of the Cut-off Date, there is no valid offset, defense,
counterclaim or right to rescission with respect to such Mortgage Note,
Mortgage(s) or other agreements, except in each case, with respect to the
enforceability of any provisions requiring the payment of default interest, late
fees, Additional Interest, prepayment premiums or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and binding
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 and limitations set
forth in representation (5) above and the following title exceptions (each such
title exception, a "Title Exception", and collectively, the "Title Exceptions"):
(a) the lien of current real property taxes, ground rents, water charges, sewer
rents and assessments not yet delinquent or accruing interest or penalties, (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 representation (12) below or appearing of
record, none of which, individually or in the aggregate, materially interferes
with the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its obligations
under the Mortgage Loan when they become due or 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), (f) if such Mortgage Loan is cross-collateralized with any other
Mortgage Loan, the lien of the Mortgage for such other Mortgage Loan, and (g) if
such Mortgage Loan is part of a Loan Combination, the lien of
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the Mortgage for the related Non-Trust Loan(s). Except with respect to
cross-collateralized and cross-defaulted Mortgage Loans and Mortgage Loans that
are part of a Loan Combination, there are no mortgage loans that are senior or
pari passu in right of payment with the subject Mortgage Loan that are secured
by the related Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing and
recording) in all public places necessary at the time of the origination of each
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate the Mortgaged Property owned by a
Mortgagor and located on the related Mortgaged Property (other than any personal
property subject to a purchase money security interest or a sale and leaseback
financing arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property), to the
extent perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, 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 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
(together with escrow payments required to be made prior to delinquency) 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. To the Seller's actual knowledge as of the Cut-off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily performed
with the origination of comparable mortgage loans by the Seller, each related
Mortgaged Property was free and clear of any material damage (other than
deferred maintenance for which escrows were established at origination) that
would materially and adversely affect the value of such Mortgaged Property as
security for the Mortgage Loan, and to the Seller's actual knowledge as of the
Cut-off Date there was no proceeding pending for the total or partial
condemnation of such Mortgaged Property.
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12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting the
related Loan Combination) after all advances of principal (as set forth on the
Mortgage Loan Schedule) is insured by an ALTA lender's title insurance policy
(or a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors or assigns is
the named insured of such policy; such policy is assignable in connection with
the assignment of the related Mortgage Note without consent of the insurer and
will inure to the benefit of the Trustee as mortgagee of record; such policy is
in full force and effect upon the consummation of the transactions contemplated
by this Agreement; all premiums thereon have been paid; no material claims have
been made under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which would
impair or diminish the coverage of such policy. The insurer issuing such policy
is either (x) a nationally recognized title insurance company or (y) qualified
to do business in the jurisdiction in which the related Mortgaged Property is
located to the extent required; and such policy contains no material exclusions
for, or affirmatively insures (except for any Mortgaged Property located in a
jurisdiction where such insurance is not available) (a) access to a public road
or (b) against any loss due to encroachments of any material portion of the
improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage was in full force and effect with respect to each
related Mortgaged Property, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property in the jurisdiction in which such Mortgaged Property is
located, and with respect to a fire and extended perils insurance policy, was in
an amount (subject to a customary deductible) at least equal to the lesser of
(i) the replacement cost of improvements located on such Mortgaged Property, or
(ii) the original principal balance of the Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting the
related Loan Combination), and in any event, in an amount necessary to prevent
operation of any co-insurance provisions, and, except if such Mortgaged Property
is operated as a manufactured housing community, such Mortgaged Property is also
covered by business interruption or rental loss insurance, in an amount at least
equal to twelve (12) months of operations of the related Mortgaged Property (or
in the case of a Mortgaged Property without any elevator, six (6) months); and
as of the Cut-off Date, to the actual knowledge of the Seller, all insurance
coverage required under each Mortgage, which insurance covers such risks and is
in such amounts as are customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which such
Mortgaged Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the Closing
Date have been paid; and no notice of termination or cancellation with respect
to any such insurance policy has been received by the Seller. Except for certain
amounts not greater than amounts which would be considered prudent
I-4
by a commercial and multifamily mortgage lending institution with respect to a
similar mortgage loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss are required to be applied
either (i) to the repair or restoration of all or part of the related Mortgaged
Property or (ii) to the reduction of the outstanding principal balance of the
Mortgage Loan, subject in either case to requirements with respect to leases at
the related Mortgaged Property and to other exceptions customarily provided for
by prudent commercial and multifamily mortgage lending institutions for similar
loans. The Mortgaged Property is also covered by 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 and multifamily mortgage lending
institutions.
The insurance policies contain a standard mortgagee clause naming the
holder of the related Mortgage, its successors and assigns as loss payee, in the
case of a property insurance policy, and additional insured in the case of a
liability insurance policy, and provide that they are not terminable without
thirty (30) days prior written notice to the Mortgagee (or, with respect to
non-payment, ten (10) days prior written notice to the Mortgagee) or such lesser
period as prescribed by applicable law. Each Mortgage requires 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 Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions, 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 the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related Mortgage
File being delivered to the Purchaser, and pursuant to the terms of the related
Mortgage or the related Mortgage Note and other documents in the related
Mortgage File, no Person or party other than the holder of such Mortgage Note
may declare any event of default or accelerate the related indebtedness under
either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior
twelve (12 ) months (or since the date of origination if such Mortgage Loan has
been originated within the past twelve (12 ) months), has not been, thirty (30)
days or more past due in respect of any Scheduled Payment.
I-5
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. No related Mortgage provides for or permits, without the prior written
consent of the holder of the Mortgage Note, any related Mortgaged Property to
secure any other promissory note or obligation except as expressly described in
such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan is directly secured by a Mortgage on a commercial
property or a multifamily residential property, and either (a) substantially all
of the proceeds of such Mortgage Loan were used to acquire, improve or protect
the portion of such commercial or multifamily residential property that consists
of an interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as defined below),
or (b) the fair market value of the interest in real property which secures such
Mortgage Loan was at least equal to 80% of the principal amount of such Mortgage
Loan (i) as of the Testing Date, or (ii) as of the Closing Date. For purposes of
the previous sentence, (A) the fair market value of the referenced interest in
real property shall first be reduced by (1) the amount of any lien on such
interest in real property that is senior to such Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is on a
parity with the Mortgage Loan, and (B) the "Testing Date" shall be the date on
which the referenced Mortgage Loan was originated unless (1) such Mortgage Loan
was modified after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.1001-3(b), and (2) such "significant modification" did not
occur at a time when such Mortgage Loan was in default or when default with
respect to such Mortgage Loan was reasonably foreseeable. However, if the
referenced Mortgage Loan has been subjected to a "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.
19. One or more environmental site assessments, updates or transaction
screens thereof were performed by an environmental consulting firm independent
of the Seller and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related Mortgage
Loan, except for those Mortgage Loans identified on Annex A to this Schedule I
for which a lender's environmental insurance policy was obtained in lieu of such
environmental site assessments, updates and transaction screens, and the Seller,
having made no independent inquiry other than to review the report(s) prepared
in connection with the assessment(s), updates or transaction screens referenced
herein, has no actual knowledge and has received no notice of any material and
adverse environmental condition or circumstance affecting such Mortgaged
Property that was not disclosed in such report(s). If any such environmental
report identified any Recognized Environmental Condition (REC), as that term is
defined in the Standard Practice for Environmental Site Assessments: Phase I
I-6
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 one or more of the following is true: (i) an escrow
greater than 100% of the amount identified as necessary by the environmental
consulting firm to address the REC is held by the Seller for purposes of
effecting same (and the related Mortgagor has covenanted in the Mortgage Loan
documents to perform such work); (ii) the related Mortgagor or other responsible
party having financial resources reasonably estimated to be adequate to address
the REC is required to take such actions or is liable for the failure to take
such actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation; (iii) the related Mortgagor has provided a
lender's environmental insurance policy (in which case such Mortgage Loan is
identified on Annex A to this Schedule I); (iv) an operations and maintenance
plan has been or will be implemented; (v) such conditions or circumstances were
investigated further and based upon such additional investigation, a qualified
environmental consultant recommended no further investigation or remediation; or
(vi) the Mortgagor or other responsible party has obtained a no further action
letter or other evidence that governmental authorities have no intention of
taking any action or requiring any action in respect of the REC. All
environmental assessments or updates that were in the possession of the Seller
and that relate to a Mortgaged Property insured by an environmental insurance
policy have been delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such policy.
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 principal 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 laws affecting the rights of
creditors and the application of principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as of
the Cut-off Date, no Mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a Loan
Combination, each Mortgage Loan is a whole loan and contains no equity
participation by the Seller 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
in the related Mortgagor.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions lending on the
security of property comparable to the related Mortgaged Property, each related
Mortgage or loan
I-7
agreement contains provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with the
requirements of the Mortgage or loan agreement, (a) the related Mortgaged
Property, or any controlling interest in the related Mortgagor, is directly
transferred or sold (other than by reason of family and estate planning
transfers, transfers by devise, descent or operation of law upon the death or
incapacity of a member, general partner or shareholder of the related Mortgagor,
transfers of less than a controlling interest in a mortgagor, issuance of
non-controlling new equity interests, transfers among existing members, partners
or shareholders in the Mortgagor or an affiliate thereof, transfers among
affiliated Mortgagors with respect to cross-collateralized and cross-defaulted
Mortgage 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 interest that do not result in a change of control) or a
substitution or release of collateral is effected other than in the
circumstances specified in representation (26) below, or (b) the related
Mortgaged Property is encumbered in connection with subordinate financing by a
lien or security interest against the related Mortgaged Property, other than any
existing permitted additional debt.
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.
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, and, except with respect to Mortgage Loans (a) which permit defeasance
by means of substituting for the Mortgaged Property (or, in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, one or more of such
Mortgaged Properties) "government securities" within the meaning of Treasury
Regulation Section 1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or
portions thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the Mortgage
Loan, (c) where release is conditional upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price that
represents adequate consideration for such Mortgaged Property or the portion
thereof that is being released, (d) which permit the related Mortgagor to
substitute a replacement property in compliance with REMIC Provisions or (e)
which permit the release(s) of unimproved out-parcels or other portions of the
Mortgaged Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that were not
allocated any value in the underwriting during the origination of the Mortgage
Loan, the terms of the related Mortgage do not provide for
I-9
release of any portion of the Mortgaged Property from the lien of the Mortgage
except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from governmental
authorities, a legal opinion, an endorsement to the related title policy, an
architect's letter or zoning consultant's report or based upon other due
diligence considered reasonable by prudent commercial and multifamily mortgage
lending institutions in the area where the applicable Mortgaged Property is
located, as of the date of origination of such Mortgage Loan and as of the
Cut-off Date, there are no material violations of any applicable zoning
ordinances, building codes and land laws applicable to the Mortgaged Property or
the use and occupancy thereof which (a) are not insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance policy
or (b) would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements which were included for the
purposes of determining the appraised value of the related Mortgaged Property at
the time of the origination of the Mortgage Loan lies outside of the boundaries
and building restriction lines of such property (except Mortgaged Properties
which are legal non-conforming uses), to an extent which would have a material
adverse affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon such
Mortgaged Property to 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).
29. With respect to at least 95% of the Mortgage Loans (by principal
balance) having a Cut-off Date Balance in excess of 1% of the Initial Pool
Balance, the related Mortgagor has covenanted in its organizational documents
and/or the Mortgage Loan documents to own no significant asset other than the
related Mortgaged Property or Mortgaged Properties, as applicable, and assets
incidental to its ownership and operation of such Mortgaged Property, and to
hold itself out as being a legal entity, separate and apart from any other
Person.
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
I-9
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. Except with respect to any Mortgage Loan that is part of a Loan
Combination, the related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund. and each Mortgage Loan
that is cross-collateralized is cross-collateralized only with other Mortgage
Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with respect to
such improvements and such insurance policy is in full force and effect and in
an amount (subject to a deductible not to exceed $25,000) at least equal to the
least of (a) the replacement cost of improvements located on such mortgaged real
property, (b) the outstanding principal balance of the subject mortgage loan and
(c) the maximum amount under the applicable federal flood insurance program.
35. 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, and to the extent not
disbursed or otherwise released in accordance with the related Mortgage Loan
documents, are in the possession, or under the control, of the Seller or its
agent and there are no deficiencies in connection therewith.
36. 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 was in possession of all material licenses, permits and authorizations
then required for use of the related Mortgaged Property, and, as of the Cut-off
Date, the Seller has no actual knowledge that the related Mortgagor was not in
possession of such licenses, permits and authorizations.
37. The origination (or acquisition, as the case may be) practices used by
the Seller or its affiliates with respect to the Mortgage Loan have been in all
material respects legal and the servicing and collection practices used by the
Seller or its affiliates with respect to the Mortgage Loan have met customary
industry standards for servicing of commercial mortgage loans for conduit loan
programs.
I-10
38. Except for any Mortgage Loan secured by a Mortgagor's leasehold
interest in the related Mortgaged Property, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
39. 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 accepts responsibility for fraud and/or other intentional material
misrepresentation. The Mortgage Loan documents for each Mortgage Loan provide
that the related Mortgagor shall be liable to the lender for losses incurred due
to the misapplication or misappropriation of rents collected in advance or
received by the related Mortgagor after the occurrence of an event of default
and not paid to the Mortgagee or applied to the Mortgaged Property in the
ordinary course of business, misapplication or conversion by the Mortgagor of
insurance proceeds or condemnation awards or breach of the environmental
covenants in the related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and security
interest in the related Mortgagor's interest in all leases, subleases, licenses
or other agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the real property.
41. With respect to such Mortgage Loan, any prepayment premium constitutes
a "customary prepayment penalty" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier than
two (2) years after the Closing Date, and (b) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note. In addition, if such Mortgage contains such a
defeasance provision, it provides (or otherwise contains provisions pursuant to
which the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to charge all
of its expenses associated with a defeasance to the Mortgagor (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that the
related Mortgagor must deliver (or otherwise, the Mortgage Loan documents
contain certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance collateral to
make payments under the related Mortgage Loan for the remainder of its term,
(ii) an Opinion of Counsel that the defeasance complies with all applicable
REMIC Provisions, and (iii) assurances from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or qualification of the
ratings assigned to the Certificates. Notwithstanding the foregoing, some of the
Mortgage Loan documents may not affirmatively contain all such requirements, but
such
I-11
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.
43. 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.
44. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a Loan
Combination, none of the Mortgaged Properties are encumbered, and none of the
Mortgage Loan documents permit the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the holder
thereof, by any lien securing the payment of money junior to or of equal
priority with, or superior to, the lien of the related Mortgage (other than
Title Exceptions, taxes, assessments and contested mechanics and materialmen's
liens that become payable after the Cut-off Date of the related Mortgage Loan).
I-12
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
None.
I-13
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than thirty (30) days after the Closing Date and such
Ground Lease permits the interest of the lessee thereunder to be encumbered
by the related Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors
or assigns, except termination or cancellation if (a) an event of default
occurs under the Ground Lease, (b) notice thereof is provided to the
mortgagee and (c) such default is curable by the mortgagee as provided in
the Ground Lease but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due but
not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to
the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless a
copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to
only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the lessee
under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which
can be exercised by the mortgagee if the mortgagee acquires the lessee's
rights under the Ground Lease) that extends not less than twenty (20) years
beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed or approved
by it having the right to hold and disburse such proceeds as repair or
restoration progresses (except in cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial and multifamily mortgage
lending institution), or to the payment or defeasance of the outstanding
principal balance of the Mortgage Loan, together with any accrued interest
(except in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial and multifamily mortgage
lending institution, taking into account the relative duration of the
ground lease and the related Mortgage and the ratio of the market value of
the related Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
Representation #8
Loan
Number Loan Name Description of Exception
------ ---------------------------- ----------------------------------------
Hampton Inn Suites - Ontario With respect to the loan listed to the
left, the original developer of the
Mortgaged Property (i) has an option to
purchase the Mortgaged Property if the
Mortgaged property is used for any
purpose other than a hotel as set forth
in the deed restrictions recorded
against the Mortgaged Property and (ii)
has a right of first refusal with
respect to a sale of the Mortgaged
Property. While such right of first
refusal would not apply to a foreclosure
acquisition of the Mortgaged Property by
the mortgage lender, such right of first
refusal would apply to subsequent sales
of the Mortgaged Property. Neither the
purchase option nor the right of first
refusal has been subordinated to the
lien of the Mortgage.
Village at Pinnacle Peak With respect to the loan listed to the
left, the tenant has an option to
purchase the Mortgaged Property. While
such purchase option is subordinated to
the lien of the Mortgage and would not
apply to a foreclosure acquisition of
the Mortgaged Property by the mortgage
lender, such purchase option would apply
to subsequent sales of the Mortgaged
Property.
XX Xxxxx - Arizona With respect to the loans listed to the
Nashville Auto Diesel left, the applicable tenant has a right
College of first refusal with respect to the
related Mortgaged Property. While each
such right of first refusal is
subordinated to the lien of the related
Mortgage and would not apply to a
foreclosure acquisition of the related
Mortgaged Property, such right of first
refusal would apply to subsequent sales
of the related Mortgaged Property.
000 Xxxxx Xxxxx 00 Xxxxx With respect to the loan listed to the
left, the tenant has an option to
purchase the Mortgaged Property (i) at
the borrower's option during the tenth
or twentieth years of the lease term or
(ii) if a material portion of the
property is taken or temporarily taken
for more than 4 months. While such
purchase option is subordinated to the
lien of the Mortgage, such purchase
option would apply to subsequent sales
of the Mortgaged Property.
Century City With respect to the loan listed to the
left, the applicable tenant has a right
of first refusal to purchase the related
Mortgaged Property in the event of a
transfer of the hotel or any interest in
the borrower to a "competitor" during
the term of the applicable franchise
agreement. While such right of first
refusal would not apply to a foreclosure
III-1
acquisition of the Mortgaged Property by
the lender, such right of first refusal
would apply to subsequent sales of the
Mortgaged Property.
Representation #13
Loan
Number Loan Name Description of Exception
------ ---------------------------- ----------------------------------------
000 Xxxxx Xxxxx 00 Xxxxx With respect to the loan listed to the
left, no business interruption insurance
is maintained. However, the security for
the loan is land only.
Representation #19
Loan
Number Loan Name Description of Exception
------ ---------------------------- ----------------------------------------
Tri-City Plaza With respect to the loan listed to the
left, the borrower is performing
remedial work pursuant to a state
administrative order with respect to
chlorinated solvents from a former dry
cleaning operation, including permanent
groundwater treatment and soil vapor
extraction systems in place at the
property. The Phase I assessment
indicated that the contaminant plume has
been contained and is not migrating
off-site. The loan documents provide for
environmental reserve deposits of $2,500
per month (subject to a $60,000 reserve
balance cap), to be disbursed to pay for
monitoring, sampling and remediation
costs, estimated in the Phase I
assessment to be $30,000 annually. The
Phase I assessment further identified a
gasoline plume under the eastern portion
of the property from an adjacent site
gasoline station, for which an
identified third party is performing
remediation and monitoring activities.
However, there can be no assurance that
such third party will continue to
perform, or that the environmental
reserve for the contamination for the
dry cleaning operation will be
sufficient to fund all necessary
remedial measures with respect thereto.
Xxxxx - Xxxxx Towne Center With respect to the loan listed to the
left, the Phase I consultant reported
soil contamination by chlorinated
solvents from an on-site dry cleaning
operation. The lender has held back
$75,000, which represents 150% of the
estimated cost to remediate the soil
contamination.
Ralph's - Long Beach With respect to the loan listed to the
left, the Phase I consultant reported
that a groundwater contaminant plume
consisting of chlorinated solvents from
a historic dry cleaning operation is
present at the subject property. A
responsible third party has been
identified and semiannual groundwater
monitoring is currently being performed.
Three years of remediation costs, which
is estimated to be $30,000 by the
consultant, was escrowed at loan
closing.
The HMAI Building With respect to the loan listed to the
left, the Phase I consultant reported
that as a result of historical
operations and the presence of numerous
underground and aboveground storage
tanks, contamination has impacted
III-2
subsurface conditions across the
mortgaged property and adjoining
property. The identified Responsible
Party has conducted subsurface
investigative activities to evaluate the
soil and water conditions and subsequent
sampling in 2003 did not indicate the
presence of the separate-phase petroleum
found earlier, but did indicate that
certain dissolved-phase petroleum's
continue to exceed the state's ambient
groundwater quality standards, although
no impact to the wetland area on the
subject property has been indicated. A
Remedial Action Plan for the mortgaged
property and the affected adjoining
property includes continued monitoring
of the groundwater and institution of
certain Activity and Use Restrictions
(AURs), which provides that a level of
No Significant Risk to human health,
safety, public welfare or the
environment exists under certain
conditions provided that operations and
activities on the subject property are
limited to commercial and industrial
uses, and do not include excavation and
disturbance of impervious surfaces.
Based on the groundwater monitoring
reports submitted to the state since
1995, the groundwater quality has been
stable to generally improving; the
concentrations of VOCs and PAHs have
decreased over time; and the
contamination has not migrated beyond
the affected property. Since a
Responsible Party has been identified
and is responsible for conducting the
groundwater monitoring program, the
environmental consultant recommended
only that the borrower conduct its own
periodic review of the groundwater
monitoring program.
Representation #21
Loan
Number Loan Name Description of Exception
------ ---------------------------- ----------------------------------------
All Loans With respect to all the loans in the
2006 C5 securitization, Seller makes no
representation regarding the bankruptcy
or insolvency of any tenant at the
Mortgaged Property.
Representation #23
III-3
Representation #26
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left, each of the properties
securing the loan listed to the
left is cross-defaulted and/or
cross-collateralized with each
other. The related loan documents
provide for the release of any one
or more properties upon a sale of
such property to a bona fide third
party purchaser and a corresponding
release of the cross
collateralization, subject to the
satisfaction of certain conditions,
including among others, that (i) no
event of default has occurred and
is continuing, (ii) the debt
service coverage ratio of the
remaining properties is equal to or
greater than the greater of (A) the
debt service coverage ratio of the
loan based on the actual trailing
12 month cash flow for the
mortgaged property calculated
immediately prior to the partial
release and (B) 1.15x, (iii) the
loan to value of the loan is no
greater than 80% and (iv) the loan
must be partially defeased in the
amount of 125% of the allocated
loan amount for the released
property as a condition to such
release.
Village at Pinnacle Peak With respect to the loan listed to
the left, the loan documents
provide for the release of a
specific portion of the related
mortgaged property upon
satisfaction of certain conditions
as set forth in the loan documents,
including, without limitation, (i)
no event of default shall exist;
(ii) after giving affect to the
release, the remaining portion of
the mortgaged property will be
sufficient to support a debt
service coverage ratio of no less
that 1.22x and an loan-to-value of
not greater than 60% without regard
to the last $2,392,132 worth of
principal due under the applicable
note; and (iii) the delivery of an
endorsement to the lender's title
insurance policy insuring that
lender will continue to have a
first lien against the remaining
property.
Penn Station With respect to the loan listed to
the left, the loan documents
provide for the release of a
specific portion of the Mortgaged
Property upon satisfaction of
certain conditions as set forth in
the loan documents, including,
without limitation, (i) no event of
default shall exist; (ii) the
delivery of an endorsement to the
lender's title insurance policy
insuring that lender will continue
to have a first lien against the
remaining property; (iii) the
remaining property shall not be in
violation of any zoning, land use,
subdivision, or other law, statute,
ordinance, rule, regulation, or
requirement of any governmental
authority having jurisdiction; (iv)
the borrower shall provide
appropriate parking spaces on a
neighboring parcel or property to
account for the reduced spaces
during the improvement of the
released parcel; and (v) the
borrower shall have entered into
the form of parking and reciprocal
easement agreement attached to the
loan document to provide for the
correct amount of parking spaces
after the improvements are
completed.
III-4
Xxxxx - Xxxxx Xxxxx
Center With respect to the loan listed to
the left, the loan documents permit
the release of a specific
undeveloped parcel subject to the
following conditions, among others:
(i) no event of default shall
exist, (ii) appropriate easements
and common use agreements shall be
granted and/or entered into and
(iii) the release shall not result
in any non compliance with
applicable laws.
East Brook Mall With respect to the loan listed at
the left, the loan documents permit
the release of a specified improved
parcel of the Mortgaged Property
subject to the following
conditions, among others: (i) no
event of default shall exist, (ii)
such release shall not cause a
material adverse effect on the
remaining portion of the Mortgaged
Property, (iii) appropriate
easements shall be granted and (iv)
the release will not result in any
loss of parking or non compliance
with applicable law.
Representation #39
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
All Loans Mortgage loans in many or all cases
provide for recourse liability to
the borrower and/or other
guarantors or indemnitors other
than the borrower for matters
and/or under circumstances which
are in addition to those items
specified in representation number
39.
III-5
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
Representation #2
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
for each lease, any assignment
(other than an assignment to lender
in connection with a foreclosure)
with respect to the applicable
mortgaged property subject to the
lease requires the consent of the
related lessor.
Representation #3
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
for each lease, the applicable
lease does not require the lender's
consent to amendments. The related
borrower, however, is prohibited in
the loan documents from entering
into amendments to the leases
without the lender's consent, and
any violation thereof would trigger
a recourse obligation of the
borrower's sponsor under the
recourse carveout guaranty.
Representation #6
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
each of the leases is subordinate
to the fee mortgage granted by the
lessor upon the property, although
there is a recognition or
non-disturbance agreement with the
lender in place for each of the
four leases.
III-1
Representation #9
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
certain of the leases allow the
applicable lessor to retain the
insurance proceeds in order to use
them to restore the mortgaged
property or, if the lessor is not
required or elects not to restore,
to disburse such funds to the
borrower periodically for the costs
of restoring the mortgaged property
incurred by the borrower. In
addition, any condemnation proceeds
are retained by the lessor.
Representation #10
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
for each lease, the consent of the
lessor for any subletting of the
related Mortgaged Property is
required.
Representation #11
Loan
Number Loan Name Description of Exception
------ --------------------------------- -----------------------------------
Dick's Sporting Goods With respect to the loan listed to
the left which is secured by
mortgages on six properties, four
of which are leasehold mortgages on
the related borrower's leasehold
estate under four separate leases,
for each lease, although the leases
require that the lessor enter into
a new lease upon termination,
certain of the leases do not
expressly state that the applicable
lessor is required to enter into a
new lease upon the rejection by the
borrower/tenant of such lease in
bankruptcy.
III-2
ANNEX A
MORTGAGE LOAN SCHEDULE
A-1
MORTGAGE LOAN
LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS
------ -------- ------ ---------------------------------------- ----------------------------------------------------------------
1 CGM 1 IRET Portfolio Various
1.1 Flagship Corporate Center 000 Xxxxxxx Xxxxxx Xxxxx
1.2 Xxx Xxxxxxxxx Xxxxxxxx 00000 Xxxxxxxxx Xxxxx
1.3 Xxxxxxxxx Xxxxxx Xxxx 00000-00000 Xxx Xxxx Xxxx
1.4 Xxxxxxx Xxxxx Xxxxx 00000 Xxxxxxx Xxxxxx
1.5 Timberlands at Tomahawk 0000 Xxxx 000xx Xxxxxx
1.6 Farnam Executive Center 00000 Xxxxxx Xxxxx
1.7 Miracle Hills Executive Center 00000 Xxxxxxx Xxxxx Xxxxx
1.8 Gateway Corporate Center 000 Xxxxxxxxxx Xxxxx
1.9 Xxxxxxxxx Xxxxx 00000 Xxxxxx Xxxxx
2 CGM 1 000 Xxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx
3 CGM 1 Tower 67 000 Xxxx 00xx Xxxxxx
9 CGM 0 Xxx Xxxx Xxxxx 00 Xxxxxxxxxxxx Xxxx
10 CGM 1 Kent Station 000-000 Xxxxxx Xxx, 000-000 Xxxx Xxxx Station Street
11 CGM 1 Dick's Sporting Goods Various
11.1 Dick's Sporting Goods/PetSmart - Concord 000-000 Xxxxxx Xxxx
11.2 Dick's Sporting Goods - Wichita 0000 Xxxx Xxxxxxx Xxxxx
11.3 Dick's Sporting Goods - Bloomingdale 000 Xxxx Xxxx Xxxxx Xxxx
11.4 Dick's Sporting Goods - Millbury 70 Worcester Providence Turnpike
11.5 Dick's Sporting Goods - North Attleboro 0000 Xxxxx Xxxxxxxxxx Xxxxxx
11.6 Dick's Sporting Goods - Melville 834 Xxxx Xxxxxxx Road
12 CGM 0 Xxxxxxxx Xxxxx 00000 & 00000 Xxxxxxx Xxxx
13 CGM 0 Xxxxx Xxxxxx Xxxxxxxxxx 000 Xxxx Xxxxxxxx Drive
17 CGM 1 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
00 XXX 0 Xxxx Xxxxx Xxxx 00 Xxxxxx Xxxx
20 CGM 0 Xxxxxxxx Xxxxx 0000-0000 and 0000-0000 Xxxxxxxx Xxxxxx
23 CGM 1 Whole Foods Market - Los Altos 4800 El Camino Real
24 CGM 1 Courtyard Century City 10320 Xxxx Xxxxxxx Xxxxxxxxx
00 XXX 0 Xxxx Xxxxxxx 0000 Xxxxxxx Xxxxxx
29 CGM 1 Hilton Head Village 1460 Fording Island Road
37 CGM 0 Xxxxx Xxxxxxxx 000 Xxxxxxxx
38 CGM 0 Xxxxxxx Xxxxx I & II 3001 and 0000 Xxxxxxx Xxxxx North
43 CGM 2 Augusta Apartments 0000 Xxxxxxxx Xxxxx, 3146 & 0000 Xxxxxx Xxxxx, and 000 Xxx Xxxxx
44 CGM 1 Ralphs 3380 Los Coyotes Diagnol
45 CGM 1 The HMAI Building 000-000 Xxxxx Xxxxxx
47 CGM 1 Hampton Inn & Suites-Ontario 0000 Xxxx Xxxxx Xxxxxx
48 CGM 0 Xxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxx Xxxx
49 CGM 1 Northside Festival Shopping Center 0000 Xxxxxxxx Xxxx Road
50 CGM 1 The Pavilion Movie Theater 000 Xxxxxxxx Xxxx Xxxx
53 CGM 1 Eastlake Medical 0000 Xxxx Xxxxx Xxxx
59 CGM 1 North Branch Outlet Center 38500 Xxxxxx Xxxxx
00 XXX 0 Xxxxxxxxxx Xxxxxxxx 0000 Xxxxxxxxxx Xxxx
67 CGM 2 Nashville Auto Diesel College 0000 Xxxxxxx Xxxxxx
69 CGM 1 Orsay Restaurant 0000-0000 Xxxxxxxxx Xxxxxx
72 CGM 1 JC Penney - 0000 Xxxx Xxx Xxxx 0000 Xxxx Xxx Xxxx
77 CGM 1 Raymour & Xxxxxxxx 000 Xxxxx Xxxxx 00 Xxxxx
85 CGM 2 Trinity Trace 0000 Xxxxxxx Xxxxxxx Xxxxx
90 CGM 1 Family Independence Agency 00000 Xxxxxx Xxxxxx
91 CGM 1 Villages at Pinnacle Peak 10428, 10434, 10440, 00000 Xxxx Xxxxx Xxxx
92 CGM 1 Xxxxx Forge Shopping Center 850 - 000 Xxxxx Xxxxxx Xxxxx Xxxx
95 CGM 1 SpringHill Suites-Charlotte Airport 0000 Xxxxx Xxxxxxx Xxxxx
96 CGM 1 Camden Village Shopping Center 0000 Xxx Xxxxxxx Xxxx
105 CGM 1 Xxxxx - Xxxxx Towne Center 0000 Xxxxx Xxxx and 4150 & 0000 Xxxxx Xxxx
112 CGM 1 Circuit City - Cincinnati, OH 0000 Xxxxxxx Xxxxxx
113 CGM 0 Xxxx Xxxxxxx Xxxxx 3732 Xxxxxx Road
127 CGM 1 Gamma Medical Center 107-109 Gamma Drive
133 CGM 1 Oakdale Shopping Center 000-000 Xxxxx Xxxxxxxx Xxxxxx
138 CGM 0 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000-0000 Xxxxx Xxxxxxx Xxxxxx
145 CGM 0 Xxxxxxxxxx Xxxxxx 00 Xxxx Xxxxxxxxxx Xxxxxx
149 CGM 1 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
161 CGM 1 Thomasville Furniture-Charlotte 00000 Xxxxxxxx Xxxxx Xxxxxxx
171 CGM 0 Xxxxxxxx Xxxxx One Gold Street
CROSS COLLATER- MASTER
LOAN CUT-OFF DATE PRINCIPAL ALIZED (MORTGAGE MORTGAGE SERVICING
NUMBER CITY STATE ZIP CODE COUNTY BALANCE LOAN GROUP) RATE FEE RATE
------ ---------------- ------- -------- -------------- ---------------------- ---------------- -------- ---------
1 Various Various Various Various 100,000,000.00 (Note 1) No 5.9236% 0.0300%
1.1 Xxxx Xxxxxxx XX 00000 Hennepin
1.2 Xxxxxxxx Xxxxxxx XX 00000 Saint Louis
1.3 Xxxxx XX 00000 Xxxxxxx
1.4 Xxxxx XX 00000 Xxxxxxx
1.5 Xxxxxxx XX 00000 Xxxxxxx
1.6 Xxxxx XX 00000 Xxxxxxx
1.7 Xxxxx XX 00000 Xxxxxxx
1.8 Xxxxxxxx XX 00000 Washington
1.9 Xxxxx Xxxxx XX 00000 Saint Louis
2 Xxx Xxxxxxx XX 00000 Los Angeles 120,000,000.00 No 6.0000% 0.0200%
3 Xxx Xxxx XX 00000 New York 100,000,000.00 No 5.8040% 0.0200%
9 Xxxxxx XX 00000 Tolland 40,000,000.00 No 5.9300% 0.0200%
10 Xxxx XX 00000 King 36,850,000.00 No 6.0150% 0.0300%
11 Various Various Various Various 35,072,201.95 No 6.1710% 0.0200%
11.1 Concord NH 00000 Xxxxxxxxx
00.0 Xxxxxxx XX 00000 Sedgwick
11.3 Xxxxxxxxxxxx XX 00000 DuPage
11.4 Xxxxxxxx XX 00000 Worcester
11.5 Xxxxx Xxxxxxxxx XX 00000 Bristol
11.6 Xxxxxxxx XX 00000 Suffolk
12 Xxxxxx XX 00000 Collin 32,070,000.00 No 6.0400% 0.0200%
13 Xxxxxxx XX 00000 San Xxxxxxx 32,000,000.00 No 5.4450% 0.0500%
17 Xxx Xxxx XX 00000 New York 23,241,314.50 No 6.2400% 0.0200%
00 Xxxxxxxxx Xxxxxx XX 00000 Tolland 22,410,000.00 No 6.2130% 0.0200%
00 Xxxxx Xxxxxx XX 00000 Xxx Xxxxxxx 22,250,000.00 No 5.9150% 0.0200%
23 Xxx Xxxxx XX 00000 Santa Xxxxx 21,600,000.00 No 5.6718% 0.0400%
24 Xxx Xxxxxxx XX 00000 Los Angeles 20,500,000.00 No 6.1200% 0.0200%
00 Xxxxx Xxxxxx XX 00000 Xxx Xxxxxxx 17,300,000.00 No 5.7850% 0.0200%
29 Xxxxxxxx XX 00000 Beaufort 15,950,000.00 No 6.1900% 0.0700%
37 Xxx Xxxx XX 00000 New York 13,880,000.00 No 6.2100% 0.0200%
38 Xxxxxx XX 00000 Xxxxxxx 13,648,000.00 No 6.0350% 0.0200%
43 Xxxxxxx XX 00000 Richmond 12,500,000.00 No 6.5050% 0.0200%
00 Xxxx Xxxxx XX 00000 Xxx Xxxxxxx 12,425,000.00 No 6.2200% 0.0200%
00 Xxxxxx XX 00000 Xxxxxxxxxxxx 12,201,771.84 No 5.1400% 0.0200%
47 Xxxxxxx XX 00000 San Bernardino 11,625,000.00 No 6.4520% 0.0200%
48 Xxxxxxx XX 00000 Davidson 11,600,000.00 No 6.2150% 0.0200%
00 Xxxxxxx XX 00000 Davidson 11,100,000.00 No 5.8800% 0.0500%
50 Xxxxxxxx XX 00000 Kings 11,000,000.00 No 6.2180% 0.0200%
53 Xxxxx Xxxxx XX 00000 San Diego 10,440,000.00 No 6.2000% 0.0200%
59 Xxxxx Xxxxxx XX 00000 Chisago 9,433,000.00 No 6.1000% 0.0200%
64 Xxxxxxxxx XX 00000 Mecklenburg 8,500,000.00 No 6.1250% 0.0200%
67 Xxxxxxxxx XX 00000 Davidson 8,450,000.00 No 5.8750% 0.0700%
69 Xxx Xxxx XX 00000 New York 8,000,000.00 No 6.2640% 0.0200%
72 Xxxxxxx XX 00000 Maricopa 7,450,000.00 No 6.1000% 0.0200%
77 Xxxxxxx XX 00000 Bergen 7,000,000.00 No 5.7500% 0.0200%
85 Xxxxxxxxx XX 00000 Tarrant 6,451,000.00 No 6.1690% 0.0200%
90 Xxxxxxx XX 00000 Xxxxx 6,129,018.00 No 6.1200% 0.0200%
91 Xxxxxxxxxx XX 00000 Maricopa 6,000,000.00 No 6.0229% 0.0200%
92 Xxxxxxxx XX 00000 Xxxxxxxxxx 5,994,762.83 No 5.8010% 0.0200%
95 Xxxxxxxxx XX 00000 Mecklenburg 5,585,534.13 No 6.3100% 0.0200%
96 Xxxxxxxxxx XX 00000 Xxxxxx 5,558,000.00 No 6.0800% 0.0200%
105 Xxxxxxxxxxx XX 00000 Xxxx 5,150,000.00 No 6.4900% 0.0600%
112 Xxxxxxxxxx XX 00000 Xxxxxxxx 4,877,026.79 No 5.3450% 0.0200%
000 Xxxx XX 00000 Summit 4,800,000.00 No 6.1900% 0.0200%
000 Xxxxxxxxxx XX 00000 Allegheny 4,088,684.09 No 5.9300% 0.0500%
000 Xxxxxxx XX 00000 Stanislaus 3,847,103.94 No 6.3600% 0.0200%
138 Pueblo CO 81005 Pueblo 3,775,256.77 No 6.4870% 0.0200%
000 Xxxx Xxxxxxx XX 00000 Xxxxxxx 3,421,000.00 No 6.0990% 0.0200%
149 Xxxxxxx XX 00000 Boulder 3,287,000.00 No 6.1400% 0.0200%
000 Xxxxxxxxx XX 00000 Mecklenburg 2,825,000.00 No 6.4274% 0.0700%
000 Xxxxxxxx XX 00000 Hartford 2,145,000.00 No 6.3700% 0.0200%
INTEREST
RESERVE
MORTGAGE
LOAN ARD LOAN LOAN
NUMBER (YES/NO)? ARD ADDITIONAL INTEREST RATE AFTER ARD (YES/NO)?
------ --------- ------- ----------------------------------------------------------------------------- ---------
1 No Yes
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
2 No Yes
3 Yes 7/11/16 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield Yes
9 No Yes
10 No Yes
11 No Yes
11.1
11.2
11.3
11.4
11.5
11.6
12 No Yes
13 No Yes
17 No Yes
19 No Yes
20 No Yes
23 No Yes
24 No Yes
26 No Yes
29 No Yes
37 Yes 6/11/13 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield Yes
38 No Yes
43 No Yes
44 No Yes
45 No Yes
47 No Yes
48 No Yes
49 No Yes
50 No Yes
53 No Yes
59 No Yes
64 No Yes
67 No Yes
69 No Yes
72 No Yes
77 No Yes
85 No Yes
90 Yes 5/11/16 Greater of 2% plus Initial Interest Rate or 3% plus annualized yield Yes
91 No Yes
92 No Yes
95 No Yes
96 No Yes
105 No Yes
112 Yes 5/11/15 2% plus Initial Interest Rate Yes
113 No Yes
127 No Yes
133 No Yes
138 No Yes
145 No Yes
149 No Yes
161 No Yes
171 No Yes
STATED STATED
GRACE STATED PERIODIC PAYMENT ORIGINAL TERM REMAINING TERM ORIGINAL REMAINING
LOAN PERIOD MATURITY ON FIRST DUE DATE TO MATURITY / TO MATURITY / AMORTIZATION AMORTIZATION
NUMBER LOAN TYPE (DAYS) DATE AFTER CLOSING (ARD MONTHS) ARD (MONTHS) TERM (MONTHS) TERM (MONTHS)
------ ------------------ ------ -------- ----------------- ------------- -------------- ------------- -------------
1 Interest Only 0 10/6/16 605,243.83 120 119 Interest Only Interest Only
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
2 Interest Only 0 10/6/16 600,000.00 120 119 Interest Only Interest Only
3 Interest Only/ARD 0 7/11/36 483,666.67 120 116 Interest Only Interest Only
9 Interest Only 0 10/11/16 197,666.67 120 119 Interest Only Interest Only
10 Partial IO/Balloon 0 7/11/16 184,710.63 120 116 360 360
11 Balloon 0 10/11/16 214,316.53 120 119 360 359
11.1
11.2
11.3
11.4
11.5
11.6
12 Partial IO/Balloon 0 8/11/16 161,419.00 120 117 360 360
13 Partial IO/Balloon 0 10/11/16 145,200.00 120 119 360 360
17 Balloon 0 8/11/16 143,310.60 120 117 360 357
19 Partial IO/Balloon 0 8/11/16 116,027.78 120 117 360 360
20 Interest Only 0 6/11/16 109,673.96 120 115 Interest Only Interest Only
23 Partial IO/Balloon 0 5/11/16 102,092.40 120 114 360 360
24 Balloon 0 11/6/16 124,493.88 120 120 360 360
26 Interest Only 0 6/11/16 83,400.42 120 115 Interest Only Interest Only
29 Partial IO/Balloon 0 7/11/16 82,275.42 120 116 360 360
37 Interest Only/ARD 0 6/11/36 71,829.00 84 79 Interest Only Interest Only
38 Partial IO/Balloon 0 11/6/16 68,638.07 120 120 360 360
43 Partial IO/Balloon 0 5/11/16 67,760.42 120 114 360 360
44 Partial IO/Balloon 0 9/11/16 64,402.92 120 118 360 360
45 Balloon 0 9/11/15 67,630.87 120 106 360 346
47 Partial IO/Balloon 0 10/6/16 62,503.75 120 119 360 360
48 Partial IO/Balloon 0 8/11/16 60,078.33 120 117 360 360
49 Partial IO/Balloon 0 10/6/16 54,390.00 120 119 420 420
50 Interest Only 0 10/6/16 56,998.33 120 119 Interest Only Interest Only
53 Partial IO/Balloon 0 6/11/16 53,940.00 120 115 360 360
59 Partial IO/Balloon 0 4/11/16 47,951.08 120 113 360 360
64 Interest Only 0 5/11/16 43,385.42 120 114 Interest Only Interest Only
67 Partial IO/Balloon 0 10/6/16 41,369.79 120 119 420 420
69 Partial IO/Balloon 0 7/11/16 41,760.00 120 116 360 360
72 Partial IO/Balloon 0 9/11/16 37,870.83 120 118 360 360
77 Partial IO/Balloon 0 3/11/16 33,541.67 120 112 360 360
85 Partial IO/Balloon 0 7/11/13 33,163.52 84 80 360 360
90 Partial IO/ARD 0 5/11/36 31,257.99 120 114 360 360
91 Partial IO/Balloon 0 9/11/16 30,114.50 120 118 360 360
92 Balloon 0 10/6/16 35,209.00 120 119 360 359
95 Balloon 0 9/11/16 37,149.45 120 118 300 298
96 Partial IO/Balloon 0 10/6/16 28,160.53 120 119 360 360
105 Partial IO/Balloon 0 9/11/21 27,852.92 180 178 360 360
112 ARD 0 5/11/35 27,765.60 120 102 360 342
113 Partial IO/Balloon 0 8/11/16 24,760.00 120 117 360 360
127 Balloon 0 9/11/16 26,241.20 120 118 300 298
133 Balloon 0 10/6/16 23,981.23 120 119 360 359
138 Balloon 0 10/6/16 23,847.24 120 119 360 359
145 Partial IO/Balloon 0 9/11/16 17,387.23 120 118 360 360
149 Partial IO/Balloon 0 9/11/16 16,818.48 120 118 360 360
161 Partial IO/Balloon 0 8/11/16 15,131.17 120 117 360 360
171 Partial IO/Balloon 0 11/6/16 11,386.38 120 120 360 360
ESCROWED
ANNUAL
REAL
LOAN DEFEASANCEN PROPERTY PROPERTY ESTATE
NUMBER LOAN (YES/NO)? BORROWER'S INTEREST SIZE SIZE TYPE LOCKBOX (YES/NO)? TAXES
------ -------------- ------------------------ -------- --------- ---------------------------------------- --------
1 Yes Fee Simple 936,720 SF Springing Hard No
1.1 Fee Simple 138,825 SF
1.2 Fee Simple 122,567 SF
1.3 Fee Simple 141,724 SF
1.4 Fee Simple 142,958 SF
1.5 Fee Simple 90,315 SF
1.6 Fee Simple 94,832 SF
1.7 Fee Simple 84,730 SF
1.8 Fee Simple 59,827 SF
1.9 Fee Simple 60,942 SF
2 Yes Fee Simple 443,271 SF Springing Hard Yes
3 Yes Fee Simple 449 Units Springing Soft No
9 Yes Fee Simple 295,367 SF None Yes
10 Yes Fee Simple 135,418 SF None No
11 Yes Fee Simple and Leasehold 319,600 SF In-Place Hard No
11.1 Fee Simple 70,087 SF
11.2 Fee Simple 48,780 SF
11.3 Leasehold 50,000 SF
11.4 Leasehold 54,175 SF
11.5 Leasehold 50,025 SF
11.6 Leasehold 46,533 SF
12 Yes Fee Simple 318,695 SF None Yes
13 No Fee Simple 293 Units None Yes
17 (Note 3) Fee Simple 21,000 SF None Yes
19 Yes Fee Simple 236,847 SF In-Place Hard, Springing Cash Management Yes
20 Yes Fee Simple 83,052 SF None No
23 Yes Fee Simple 50,451 SF Springing Hard No
24 Yes Fee Simple 135 Rooms None Yes
26 Yes Fee Simple 76,169 SF Springing Hard No
29 Yes Fee Simple 110,710 SF None No
37 Yes Fee Simple 10,558 SF Springing Hard No
38 Yes Fee Simple 60,550 SF Springing Hard Yes
43 Yes Fee Simple 496 Units None Yes
44 Yes Fee Simple 44,500 SF None No
45 Yes Fee Simple 238,897 SF In-Place Hard Yes
47 Yes Fee Simple 91 Rooms Springing Soft Yes
48 Yes Fee Simple 130,475 SF None Yes
49 No Fee Simple 93,684 SF Springing Hard No
50 Yes Fee Simple 33,120 SF None Yes
53 Yes Fee Simple 36,226 SF None Yes
59 Yes Fee Simple 134,480 SF In-Place Hard Yes
64 Yes Fee Simple 64,736 SF None No
67 Yes Fee Xxxxxx 000 Xxxxx Xxxx Xx
00 Yes Fee Simple 19,806 SF None Yes
72 Yes Fee Simple 104,800 SF Springing Hard No
77 Yes Fee Simple 61,758 SF None No
85 Yes Fee Simple 240 Units None Yes
90 Yes Fee Simple 36,520 SF In-Place Hard Yes
91 Yes Fee Simple 28,281 SF Springing Soft Yes
92 Yes Fee Simple 38,701 SF None Yes
95 Yes Fee Simple 95 Rooms None Yes
96 Yes Fee Simple 30,975 SF In-Place Hard Yes
105 Yes Fee Simple 25,819 SF None Yes
112 No Fee Simple 33,343 SF Springing Hard No
113 No Fee Simple 51,620 SF Springing Hard Yes
127 Yes Fee Simple 29,286 SF In-Place Hard Yes
133 Yes Fee Simple 94,721 SF Springing Hard Yes
138 Yes Fee Simple 154,885 SF Springing Hard Yes
145 Yes Fee Simple 34,869 SF None Yes
149 Yes Fee Simple 19,700 SF None Yes
161 Yes Fee Simple 14,546 SF Springing Hard No
171 Yes Fee Simple 19,347 SF Springing Hard Yes
SCROWED
REPLACEMENT INITIAL
SCROWED RESERVES ESCROWED REPLACEMENT ESCROWED TI/LC ESCROWED TI/LC DEFERRED INITIAL
LOAN ANNUAL INITIAL RESERVES CURRENT RESERVES INITIAL RESERVES CURRENT MAINTENANCE ENVIRONMENTAL
NUMBER INSURANCE DEPOSIT ANNUAL DEPOSIT DEPOSIT ANNUAL DEPOSIT DEPOSIT DEPOSIT
------ --------- ----------- -------------------- ---------------- ---------------- ----------- -------------
1 No 0 0 0 0 0 0
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
2 Yes 0 53,193 0 0 0 0
3 No 0 0 NAP NAP 0 0
9 No 0 44,995 0 74,992 12,500 0
10 No 0 0 1,253,443 0 0 0
11 No 0 0 0 0 0 0
11.1
11.2
11.3
11.4
11.5
11.6
12 Yes 0 67,018 0 239,349 0 0
13 Yes 0 58,600 NAP NAP 0 0
17 No 0 2,100 0 0 0 0
19 Yes 36,614 0 0 41,222 0 0
20 Xx 0 0 0 0 0 0
00 Xx 0 0 0 0 2,721,370 0
24 Yes 0 222,878 NAP NAP 11,875 0
26 Xx 0 0 0 0 0 0
00 Xx 0 16,607 0 27,678 0 0
37 No 0 0 0 0 18,125 0
38 No 0 12,110 0 60,550 173,000 0
43 Yes 248,000 0 NAP NAP 12,500 0
44 No 0 0 0 0 0 30,000
45 Yes 0 26,280 0 71,669 0 0
47 Yes 0 123,725 NAP NAP 0 0
48 No 0 19,571 0 56,104 239,103 0
49 No 0 9,368 0 0 0 0
50 No 0 0 0 0 6,600 0
53 Yes 0 5,434 0 36,226 0
59 Yes 0 20,172 150,000 67,240 0 0
64 No 0 0 237,079 0 0 0
67 No 0 0 NAP NAP 0 0
69 Yes 0 5,155 0 0 26,875 0
72 No 0 11,537 0 0 0 0
77 No 0 0 0 0 0 0
85 Yes 83,400 60,000 NAP NAP 28,125 0
90 Yes 79,936 0 109,560 0 12,064 0
91 Yes 0 0 0 0 0 0
92 Yes 0 9,826 0 23,271 20,875 0
95 Yes 0 81,336 NAP NAP 0 0
96 No 46,427 0 464,625 0 0 0
105 Yes 4,000 0 15,000 0 0 75,000
112 Yes 0 0 0 0 0 0
113 Yes 0 10,324 0 25,810 5,425 0
127 Yes 0 5,857 55,956 32,214 16,875 0
133 No 0 22,733 0 71,041 30,625 0
138 No 0 29,421 0 77,423 0 0
145 No 0 8,750 0 0 0 0
149 Yes 0 3,940 0 14,775 0 0
161 Xx 0 0 0 0 0 0
000 Xx 0 0 0 550,000 0
LOAN HOLDBACK ENVIRONMENTAL
NUMBER RESERVE LOC INSURANCE POLICY
------ --------- ------- ----------------
1
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
2
3
9
10 4,279,000
11
11.1
11.2
11.3
11.4
11.5
11.6
12 3,070,000
13
17
19
20
23
24
26
29
37
38
43
44
45
47
48
49
50
53
59
64 200,000
67
69
72
77
85
90
91
92
95
96
105
112
113
127
133
138 477,000
145
149
161
171
FOOTNOTES TO SCHEDULE I
(1) With respect to loan number 17, borrower has the option of defeasance or
prepayment at yield maintenance premium after the initial lockout period.
(2) With respect to loan number 46, the Monthly Debt Service Payment shown is
due from the First Payment Date up to and including the payment due date in
October 2010. Commencing on the payment due date in November 2010, a
payment of interest only will be in effect up to and including the
Scheduled Maturity Date/ARD.
