EXHIBIT 99.3
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as of
June 20, 2006, between BARCLAYS CAPITAL REAL ESTATE, INC., 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 and/or commercial mortgage loans (the "Mortgage Loans") identified
on the schedule (the "Mortgage Loan Schedule") annexed hereto as "Annex A";
provided that, if only one mortgage loan is identified on the Mortgage Loan
Schedule then references herein to "Mortgage Loan" or "Mortgage Loans" will mean
that one mortgage loan. 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 June 1, 2006, among CCMSI, as depositor, Midland
Loan Services, Inc., as master servicer (the "Master Servicer"), X.X. Xxxxxx
Company, Inc., as special servicer (the "Special Servicer"), and LaSalle Bank
National Association, as trustee (the "Trustee"). 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"), Barclays
Capital Inc., PNC Capital Markets LLC, Banc of America Securities LLC and
Deutsche Bank Securities Inc. (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 June 20, 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 June 20, 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 $100,000,000 (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
$2,263,536,038 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on June 29, 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 (which conditions
shall be deemed to have been satisfied or waived upon the Seller's receipt of
the Aggregate Purchase Price), the Seller does hereby sell, transfer, assign,
set over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in and
to the Mortgage Loans identified on the Mortgage Loan Schedule as of such date,
on a servicing-released basis, together with all of the Seller's right, title
and interest in and to the proceeds of any related title, hazard, primary
mortgage or other insurance 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 Master Servicer pursuant to that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date,
between the 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
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and interest collected after the Cut-off Date (other than in respect of
principal and interest on the Mortgage Loans due on or before the Cut-off Date).
All scheduled payments of principal and interest due on or before the Cut-off
Date but collected after the Cut-off Date, and recoveries of principal and
interest collected on or before the Cut-off Date (only in respect of principal
and interest on the Mortgage Loans due on or before the Cut-off Date and
principal prepayments thereon), shall belong to, and shall be promptly remitted
to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a copy to the
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 Master Servicer) the remaining documents and instruments
specified below with respect to each Mortgage Loan that is a Serviced Mortgage
Loan (the documents and instruments specified below, collectively, the "Mortgage
File"). The Mortgage File for each Mortgage Loan shall contain the following
documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of Citigroup
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4" or in blank (or a lost note affidavit
and indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with
any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank, the
name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and
(C) any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of
Citigroup Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C4" (and, in the case of a Serviced Loan
Combination, also on behalf of the related Non-Trust Loan
Noteholder(s)), or in blank;
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(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above), in favor of "LaSalle Bank National Association, as
trustee for the registered holders of Citigroup Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2006-C4"
(and, in the case of a Serviced Loan Combination, also on behalf of
the related Non-Trust Loan Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a pro forma policy or 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
Mortgage Loan or in favor of any assignee prior to the Trustee (but
only to the extent the Seller had possession of such UCC Financing
Statements when it was to deliver the subject Mortgage File on or
prior to the Closing Date) and, if there is an effective UCC Financing
Statement and continuation statement in favor of the Seller on record
with the applicable public office for UCC Financing Statements, an
original UCC Financing Statement assignment, in form suitable for
filing in favor of "LaSalle Bank National Association, as trustee for
the registered holders of Citigroup Commercial Mortgage Pass-Through
Certificates, Series 2006-C4" (and, in the case of any Serviced Loan
Combination, also on behalf of the related Non-Trust Loan
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;
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to the Mortgage
Loan (with the original of any such letter of credit to be delivered
to the Master Servicer); and
(xii) if such Mortgage Loan is part of a Loan Combination, all of
the above documents with respect to each related Non-Trust Loan,
together with the related co-lender agreement; provided that a copy of
the Mortgage Note relating to each such
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Non-Trust Loan, rather than the original, shall be provided, and no
endorsements to such note shall be provided.
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 Master
Servicer or the 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 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.
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(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
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(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of Delaware and
possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and
to execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law), and by public policy considerations underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of the provisions of this Agreement which purport to
provide indemnification from liabilities under applicable securities
laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's 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 certificate of incorporation, bylaws or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect
the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the
execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent
has been obtained);
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(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions 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
Schedule III. 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 90 days
from receipt of such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the meaning
of the REMIC Provisions (a "Qualified Mortgage"), not later than 90 days from
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 Master Servicer for
deposit into the 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
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proceeding with the cure of such Document Defect or Breach within such 90-day
period, then unless such Document Defect or Breach would cause the Mortgage Loan
not to be a Qualified Mortgage, such Seller shall have an additional 90 days to
complete such cure (or, failing such cure, to repurchase or substitute for the
related Mortgage Loan); and provided, further, that with respect to such
additional 90-day period the Seller shall have delivered an officer's
certificate to the Trustee setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Document Defect or Breach will be cured within the additional 90-day
period; and provided, further, that 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 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, 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
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all of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the Master
Servicer to determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been approved by
the Seller (such approval not to be unreasonably withheld). To the extent that
the Seller is required to purchase or substitute for a Crossed Loan hereunder in
the manner prescribed above while the Purchaser continues to hold any other
Crossed Loans in such Crossed Group, neither the Seller nor the Purchaser shall
enforce any remedies against the other's Primary Collateral, but each is
permitted to exercise remedies against the Primary Collateral securing its
respective Crossed Loans, including, with respect to the Purchaser, the Primary
Collateral securing the Crossed Loans still held by the Purchaser, so long as
such exercise does not materially impair the ability of the other party to
exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, 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 Master Servicer, the Special Servicer, the Trustee 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
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and the Master Servicer written confirmation 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, 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 Master Servicer,
respectively, if applicable, (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer 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 Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it, and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or 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.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Purchaser has the
full corporate power and authority and legal right to acquire the Mortgage Loans
from the Seller and to transfer the Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws (and
which will be obtained on a timely basis), no consent, approval, authorization
or order of, registration or filing with, or notice to, any governmental
authority or court, is required, under federal or state law, for the execution,
delivery and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
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(d) None of the acquisition of the Mortgage Loans by the Purchaser, the
transfer of the Mortgage Loans to the Trustee, and the execution, delivery or
performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (i) any term or provision of the
Purchaser's articles of association or bylaws, (ii) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets, which default
might have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or have consequences that would
materially and adversely affect its performance hereunder.
(e) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(f) There is no action, suit, proceeding or investigation pending or to the
knowledge of the Purchaser, threatened against the Purchaser in any court or by
or before any other governmental agency or instrumentality which would, in the
Purchaser's reasonable and good faith judgment, materially and adversely affect
the validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or other) or operations of the
Purchaser or its properties or might have consequences that would materially and
adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley 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
11
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 Master Servicer, respectively,
all documents represented to have been or required to be delivered to the
Trustee and the 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 a duly authorized officer of
the Seller and dated the Closing Date, and upon which CCMSI and the Dealers may
rely, to the effect that: (i) the representations 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 Schedule III 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
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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 Delaware 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 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
expenses of the Trustee (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
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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
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser 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 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
14
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.
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
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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.
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.
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SECTION 21. ShopKo Portfolio. Notwithstanding anything to the contrary
contained herein, it is understood and agreed that: (i) the Mortgage Loan
identified on the Mortgage Loan Schedule by loan number 1 is part of an
aggregate debt secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule as the ShopKo Portfolio; (ii) one of the Other Mortgage Loans will
also constitute part of that same aggregate debt (such Other Mortgage Loan, the
"Other ShopKo Portfolio Mortgage Loan"); and (iii) the Seller shall have no
obligations or liabilities associated with the Other ShopKo Portfolio Mortgage
Loan.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
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
------
BARCLAYS CAPITAL REAL ESTATE INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
PURCHASER
---------
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
--------------------
Name: Xxxxxx Xxxxx
Title: Vice President
EXHIBIT A
ADDRESS FOR NOTICES
-------------------
Seller:
-------
Address for Notices:
Barclays Capital Real Estate Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: CMBS Group, Xxxxxxx Xxxxxxxxx
Facsimile Number: (000) 000-0000
with a copy to:
Office of the General Counsel
Attn: Xxxxx Xxxxxxxx
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 and marketable title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan, 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 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
I-1
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. 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 mobile home park, such Mortgaged Property is also covered by
business interruption or rental loss insurance, in an amount at least equal to
12 months of operations of the related Mortgaged Property (or in the case of a
Mortgaged Property without any elevator, 6 months); and 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 by a commercial and
multifamily
I-4
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 30
days prior written notice to the Mortgagee (or, with respect to non-payment, 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 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 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 30 days or more past due in
respect of any Scheduled Payment.
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-8
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.
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.
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
I-10
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 years after the Closing Date, and (b) only with substitute collateral
constituting "government securities" within the meaning of Treasury Regulations
Section 1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note. In addition, if such Mortgage contains such a
defeasance provision, it provides (or otherwise contains provisions pursuant to
which the holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to charge all
of its expenses associated with a defeasance to the Mortgagor (including rating
agencies' fees, accounting fees and attorneys' fees), and provide that the
related Mortgagor must deliver (or otherwise, the Mortgage Loan documents
contain certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance collateral to
make payments under the related Mortgage Loan for the remainder of its term,
(ii) an Opinion of Counsel that the defeasance complies with all applicable
REMIC Provisions, and (iii) assurances from the Rating Agencies that the
defeasance will not result in the withdrawal, downgrade or qualification of the
ratings assigned to the Certificates. Notwithstanding the foregoing, some of the
Mortgage Loan documents may not affirmatively contain all such requirements, but
such requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC Opinion of
Counsel.
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
I-11
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 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 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 lease) to cure any curable default under
such Ground Lease before the lessor thereunder may terminate such
Ground Lease.
II-1
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth
therein all of which can be exercised by the mortgagee if the
mortgagee acquires the lessee's rights under the Ground Lease) that
extends not less than 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 (SET FORTH IN SCHEDULE I)
Representation #8
-----------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (Madison, WI) With respect to the loan listed to the left, there is an
outstanding third party purchase option which has not
been subordinated to the lien of the related mortgage.
The borrower is permitted to release the affected
property in connection with such purchase option,
subject to certain conditions, including, among other
things, by payment of a release price specified in the
loan documents. In the event such option is exercised
prior to the permitted defeasance date, the ShopKo
Portfolio Loan will be subject to prepayment (together
with a yield maintenance payment) in an amount equal to
the greater of (i) 100% of the allocated loan amount and
(ii) the price received by the related borrower in
connection with the exercise of such purchase option.
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio With respect to the loan listed to the left, such loan
is part of a loan combination that includes multiple
additional mortgage loans (not included in the series
2006-C4 securitization transaction) that are: (a) pari
passu and pro rata in right of payment with, and
cross-defaulted with, the subject underlying mortgage
loan; and (b) secured by the same mortgage instrument(s)
encumbering the same portfolio of mortgaged real
properties as is the subject underlying mortgage loan.
-------------- -------------------------------------------- ----------------------------------------------------------
III-1
Representation #11
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (De Pere, WI) The borrower (with the consent of lender) recently
agreed to convey a non-material portion of the mortgaged
property to assist in a road project being undertaken to
construct a new bridge. The amount of land conveyed was
31 square feet, for which the borrower received
$372.00.
----------------- ----------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (Walla Walla, WA) The city of Walla Walla is studying a road realignment
project that may affect the parking lot and access to the
mortgaged property. The borrower is working with a
developer and potential purchaser of the adjoining mall to
submit alternative site plan designs to ensure desirable
access to the mortgaged property and no negative impact
with respect to parking.
----------------- ----------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (Ashwaubenon, WI) In conjunction with the Wisconsin Department of
Transportation, the village of Ashwaubenon is studying
an extension of an off-ramp from a nearby state highway
that would extend through a portion of excess land near
the general office building at the related mortgaged
property. The borrower is cooperating with the Village
and this project has not been finalized and is still
confidential.
----------------- ----------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (Stevens Point, WI) The City of Xxxxxxx Point and the owner of the adjacent
mall desire to realign roads and redevelop certain
surrounding properties. The ShopKo store is key to the
current development but the building location is not
conducive to the developer's optimal design and
redevelopment plan. The plans are preliminary and the City
has yet to approve any such plans.
----------------- ----------------------------------------- ----------------------------------------------------------
III-2
Representation #17
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio With respect to the loan listed to the left, such loan
is part of a loan combination that includes multiple
additional mortgage loans (not included in the series
2006-C4 securitization transaction) that are: (a) pari
passu and pro rata in right of payment with, and
cross-defaulted with, the subject underlying mortgage
loan; and (b) secured by the same mortgage instrument(s)
encumbering the same portfolio of mortgaged real
properties as is the subject underlying mortgage loan.
-------------- -------------------------------------------- ----------------------------------------------------------
Representation #23
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio With respect to the loan listed to the left, sponsors of
the borrower are permitted to pledge indirect interests in
the borrower in connection with a line of credit or similar
corporate facility secured by all, or substantially all, of
such sponsor's assets.
-------------- -------------------------------------------- ----------------------------------------------------------
Representation #26
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio (Madison, WI) With respect to the loan listed to the left, there is an
outstanding third party purchase option which has not
been subordinated to the lien of the related mortgage.
The borrower is permitted to release the affected
property in connection with such purchase option,
subject to certain conditions, including, among other
things, by payment of a release price specified in the
loan documents. In the event such option is exercised
prior to the permitted defeasance date, the ShopKo
Portfolio Loan will be subject to prepayment (together
with a yield maintenance payment) in an amount equal to
the greater of (i) 100% of the allocated loan
-------------- -------------------------------------------- ----------------------------------------------------------
III-3
-------------- -------------------------------------------- ----------------------------------------------------------
amount and (ii) the price received by the related borrower
in connection with the exercise of such purchase option.
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio The borrower may obtain a release of any of the related
mortgaged real properties by substituting another retail
property of like kind and quality, subject to
satisfaction of the following conditions, among others:
(a) the aggregate combined amount (by square foot) of
rentable space (expressed as a percentage of the total
rentable space) that can be substituted may not exceed
20% in any one calendar year and 30% over the term of
the related operating leases at the ShopKo Portfolio
mortgaged real properties; (b) based on a current
appraisal of the replaced property and the substitute
property, the appraised value of the substitute property
must be equal to or greater than the appraised value of
the replaced property as of origination and immediately
prior to the date of proposed substitution; (c) based on
a certificate of the related borrower, together with
other evidence that would be satisfactory to a prudent
institutional mortgage loan lender, after the
substitution of a substitute property and the release of
the replaced property, the debt service coverage ratio
for the 12 full calendar months immediately preceding
the date of the substitution with respect to all
properties remaining subject to the lien of the related
mortgage instrument after the substitution will be equal
to or greater than the (i) debt service coverage ratio
for the 12 full calendar months immediately preceding
the origination date and (ii) debt service coverage
ratio for the 12 full calendar months immediately
preceding the substitution (including the replaced
property and excluding the substitute property);
(d) after individual properties with an aggregate square
footage of at least ten percent (10%) of the original
square footage demised under the related operating
leases have been released, if the ShopKo Portfolio
Mortgage Loan is part of a securitization, the lender
shall have received confirmation in writing from the
rating agencies to the effect that such release and
substitution will not result in a withdrawal,
qualification or
-------------- -------------------------------------------- ----------------------------------------------------------
III-4
-------------- -------------------------------------------- ----------------------------------------------------------
downgrade of the respective ratings in effect immediately
prior to such release and substitution for the securities
issued in connection with the securitization that are then
outstanding; (e) the lender has received evidence that the
store-level profitability as set forth in the P&L report of
the substitute property is equal to or greater than the
store-level profitability of the replaced property as set
forth in the P&L report for the immediately preceding
12-month period; and (f) no event of default shall have
occurred and be continuing and borrower shall be in
compliance in all material respects with all terms and
conditions set forth in the loan documents.
-------------- -------------------------------------------- ----------------------------------------------------------
Representation #28
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio No surveys were received in connection with the ShopKo
Portfolio Loan. However, title insurance with no survey
exception and express map endorsements were issued with
respect to the related mortgaged properties.
-------------- ------------------------------------------- -----------------------------------------------------------
Representation #31
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- -------------------------------------------- ----------------------------------------------------------
ShopKo Portfolio Federated Bond Fund, a Portfolio of Federated Investment
Series Funds, Inc. et al v. ShopKo Stores, Inc., Sun
Capital, Partners Group IV, Inc., Sun Capital Partners IV,
LP, SKO Group Holdings Corp., and SKO Acquisition Group
This matter involves a tender by an affiliate ("Affiliate")
of ShopKo Stores Operating Co., LLC (an operating tenant of
the mortgaged properties which no longer has any relation
to the borrower) to purchase its 9.25% Senior Notes due
March 15, 2023, Plaintiffs allege (1) the Affiliate
violated Section 14(e) of the Securities Exchange Act of
1934 and that any consent solicitations received after July
14,
-------------- -------------------------------------------- ----------------------------------------------------------
III-5
-------------- -------------------------------------------- ----------------------------------------------------------
2005 are invalid, (2) that the Affiliate and the other
defendants violated 15 U.S.C.A. Section 78n(e) by
manipulating proposed merger transactions, first with an
affiliate of Xxxxxxx Xxxx Xxxxxxx & Xxxxxxxx, Inc. and then
with an affiliate of Sun Capital Partners, (3) that the
Affiliate committed fraud and coercion in the inducement,
and (4) that the Affiliate fraudulently misrepresented the
proposed merger transactions. The Affiliate intends to
vigorously defend this action. The Affiliate and the other
defendants have filed a motion to dismiss the action in
lieu of an Answer, an oral argument and the motion was
heard on May 12, 2006.
Xxxx Xxxxxxx, Individually and on behalf of others
similarly situated v. ShopKo Stores, d/b/a ShopKo Stores
and Pamida Stores Purported class action filed by a former
general merchandise manager in Boise, Idaho, seeking (1)
unpaid wages and overtime pursuant to FLSA, (2) declaration
that the Affiliate's practices violate the FLSA, and (3)
injunction prohibiting the Affiliate from continuing to
misclassify persons in assistant manager positions as
exempt from the wage and overtime requirements of the FLSA,
and from destroying, altering or discarding evidence and
records. The Affiliate has filed a summary judgment motion
that is pending before the Court. The Affiliate intends to
vigorously defend this action.
-------------- -------------------------------------------- ----------------------------------------------------------
III-6
Representation #45
------------------
-------------- -------------------------------------------- ----------------------------------------------------------
Loan
Number Loan Name Description of Exception
-------------- ------------------------------------------- -----------------------------------------------------------
ShopKo Portfolio With respect to the loan listed to the left, sponsors of
the borrower are permitted to pledge indirect interests in
the borrower in connection with a line of credit or similar
corporate facility secured by all, or substantially all, of
such sponsor's assets.
-------------- ------------------------------------------- -----------------------------------------------------------
III-7
ANNEX A
-------
MORTGAGE LOAN SCHEDULE
A-1
MORTGAGE LOAN
LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
1 BCRE 1 ShopKo Portfolio Various Various
1.1 00000 Xxxxx 000xx Xxxxxx 00000 Xxxxx 000xx Xxxxxx Xxxxx
1.2 000 Xxxxxxx Xxx 000 Xxxxxxx Xxx Xxxxx Xxx
1.3 0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx De Pere
1.4 000 Xxx Xxxx Xxxxxx 000 Xxx Xxxx Square Ashwaubenon
1.5 00 Xxxx Xxxxxxxxx 00 Xxxx Xxxxxxxxx Xxxxxxx
1.6 000 Xxxx Xxxxxxxx Xxxxx 000 Xxxx Xxxxxxxx Xxxxx Coeur D'Alene
1.7 0000 Xxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxx Boise
1.8 000 Xxxx Xxxxxxx Xxxxxxxx (Xxxxxxx 53) 801 West Central Entrance (Highway 53) Duluth
1.9 0000 Xxxxxx Xxxxxx Xxxxx (Xxxxxxx 23) 0000 Xxxxxx Xxxxxx Xxxxx (Xxxxxxx 23) Saint Cloud
1.10 0000 Xxxxxxx Xxxxx Xxxx 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxx
1.11 0000 Xxxx Xxxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
1.12 0000 Xxxxx Xxxx 2201 Xxxxx Road Madison
1.13 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Mankato
1.14 2820 Xxxxxxx 00 Xxxxx 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx
1.15 0000 Xxxxxxx 00 Xxxxx 0000 Xxxxxxx 00 Xxxxx Xxxxxxxxx
1.16 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Quincy
1.17 0000 Xxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx Xxxxx Xxx
1.18 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxxxx Center Boulevard Kennewick
1.19 00000 Xxxx Xxxxxx Xxxx 00000 Xxxx Xxxxxx Xxxx Xxxxx
1.20 0000 Xxxxx 00xx Xxxxxx 0000 Xxxxx 00xx Xxxxxx Omaha
1.21 000 Xxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx Xxxx du Lac
1.22 0000 Xxxx Xxxxxxxxxx Xxxxxx 0000 Xxxx Xxxxxxxxxx Xxxxxx Marquette
1.23 0000 Xxxx 00xx Xxxxxx 0000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx
1.24 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx Xxxxx Xxxx
1.25 000 Xxxxx Xxx Xxxx 000 Xxxxx Xxx Xxxx Xxxxxx
1.26 000 Xxxx Xxxxxxxxxx Xxxxxx 955 West Clairemont Avenue Eau Claire
1.27 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Rapids
1.28 0000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
1.29 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxx
1.30 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx Xxxxxxxx
1.31 North 0000 Xxxxxxx Xxxxxxx Xxxxx 9520 Newport Highway Spokane
1.32 0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Racine
1.33 0000 Xxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxx Xxxxxx Spokane
1.34 0000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
1.35 0000 XX Xxxxxxx 00 2500 US Highway 14 Janesville
1.36 0000 00xx Xxxxxx Xxxxxxxxx 0000 00xx Xxxxxx Xxxxxxxxx Xxxxxx
1.37 000 Xxxxxxx 00 Xxxxxxxxx 000 Xxxxxxx 00 Xxxxxxxxx Saint Cloud
1.38 0000 Xxx Xxxxxxx Xxxxxxxxx 1400 Big Thunder Boulevard Belvidere
1.39 0000 Xxxx Xxxxxxxx 0000 Xxxx Xxxxxxxx Monona
1.40 0000 Xxxxx Xxxx Xxxx 0000 Xxxxx Xxxx Xxxx Grand Island
1.41 0000 00xx Xxxxxx 0000 00xx Xxxxxx Xxxxxxx
1.42 000 Xxxxx 00xx Xxxxxx Xxxx 000 Xxxxx 00xx Xxxxxx Xxxx Xxxxxxxx
1.43 000 Xxxxx Xxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx
1.44 0000 Xxxx Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxxxx
1.45 0000 Xxxxx 00xx Xxxxxx 0000 Xxxxx 00xx Xxxxxx Lincoln
1.46 0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx
1.47 0000 Xxxxxxxx Xxxx 0000 Xxxxxxxx Xxxx Menasha
1.48 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Beloit
1.49 0000 Xxxxx Xxxxxxx 00 0000 Xxxxx Xxxxxxx 00 Xxxxxxxx
1.50 0000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxx Xxxxxxx
1.51 000 Xxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx Sheboygan
1.52 1553 West 9000 South 1553 West 9000 South West Jordan
1.53 0000 Xxxxx 0000 Xxxx 2290 South 1300 East Salt Lake City
1.54 000 Xxxxxxxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx Xxxxxx
1.55 0000 Xxxxxx Xxxx Xxxxxx 0000 Xxxxxx Xxxx Xxxxxx Yakima
1.56 0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx Xxxxxxxx
1.57 0000 Xxxxxxxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx Grafton
1.58 0000 Xxxxxx Xxxxxx Xxxx (State Highway 14) 4344 Mormon Coulee Road (State Highway 14) La Crosse
1.59 0000 Xxxxx Xxxxx 1200 Xxxxx Drive Xxxxxxxx
1.60 0000 Xxxxx Xxxxxxx Xxxx Xxxx 0000 Xxxxx Xxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx
1.61 000 Xxxxx Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxxx Xxxxxx De Pere
1.62 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxxxx
1.63 000 0xx Xxxxxx Xxxxxxxxx 000 0xx Xxxxxx Xxxxxxxxx Xxxxxxxxx
1.64 0000 Xxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx Rothschild
1.65 0000 Xxxx Xxxxxx (State Highway 10) 0000 Xxxx Xxxxxx (State Highway 10) Xxxxxxx Point
1.66 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxxxxxx
1.67 000 Xxxxx 000 Xxxx 000 Xxxxx 000 Xxxx Xxxx Bountiful
1.68 000 Xxxxx Xxxxxxx 000 000 Xxxxx Xxxxxxx 000 Xxxxxxxx
1.69 000 Xxxxxxxxx Xxxxxx 000 Xxxxxxxxx Xxxxxx Xxxxx Xxxxx
1.70 0000 Xxxxx Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxxxx Helena
1.71 South 0000 Xxxxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxxx Pullman
1.72 000 Xxxxx Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxx
1.73 0000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxx
1.74 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxx City
1.75 0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx Layton
1.76 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Boise
1.77 4850 West 3500 South 4850 Xxxx 0000 Xxxxx Xxxx Xxxxxx Xxxx
1.78 0000 Xxxxx Xxxxxxx 00 (Xxxxx Xxxxxx) 0000 Xxxxx Xxxxxxx 00 (Xxxxx Xxxxxx) Xxxxxxxx
1.79 0000 Xxxx Xxxxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxx Delavan
1.80 000 Xxxxxx Xxxx Xxxxx 601 Xxxxxx Road South Bellevue
1.81 0000 Xxxxxxxxxx Xxxxxxxxx 0000 Xxxxxxxxxx Xxxxxxxxx Ogden
1.82 0000 Xxxxxxx Xxxx 0000 Xxxxxxx Xxxx Xxxxx Xxxxx
1.83 000 Xxxx 0xx Xxxxxx 000 Xxxx 0xx Xxxxxx Xxxxxx
1.84 0000 Xxxxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxx Xxx
1.85 0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Xxxxxxx
1.86 000 Xxxx Xxxxxx Xxxxxx 000 Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx
1.87 0000 Xxxxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx
1.88 0000 Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxxxxxx
1.89 0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxxxxxx Xxxxxxxxx Xxxxx
1.90 000 Xxxx Xxxxxxxx Xxxxx 000 Xxxx Xxxxxxxx Xxxxx Xxxxxxxx
1.91 0000 Xxxxxxxxx Xxxxxx 2741 Roosevelt Street Marinette
1.92 0000 Xxxxx Xxxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxxxxx Xxxxxxx Provo
1.93 0000 Xxxx Xxxx Xxxx Xxxx 0000 Xxxx Xxxx Xxxx Xxxx Xxxx Xxxxx
1.94 000 Xxxxxx Xxxx X 000 Xxxxxx Xxxx O Rice Lake
1.95 0000 Xxxxxxxxxxx Xxxxxxx 4215 Yellowstone Highway Chubbuck
1.96 000 Xxxx 00xx Xxxxxx 000 Xxxx 00xx Xxxxxx Xxxxx Xxxxx
1.97 0000 Xxxxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx
1.98 0000 Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxx Xxxxx
1.99 0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx Xxxxx Gap
1.100 000 Xxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx Freeport
1.101 000 Xxxxx Xxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxx Spanish Fork
1.102 0000 Xxxxx Xxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx Xxxxx
1.103 000 Xxxxx Xxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxx Xxxxxxx Xxxx
1.104 0000 Xxxxxxxxxx Xxxxxx 1425 Janesville Avenue Fort Xxxxxxxx
1.105 2120 Thain Grade 2120 Thain Grade Lewiston
1.106 0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx Ledgeview
1.107 0000 Xxxxxxxxx Xxxx 0000 Xxxxxxxxx Xxxx Xxxxxx
1.108 0000 Xxxxx 0xx Xxxxxx 0000 Xxxxx 0xx Xxxxxx Xxxxxxxx
1.109 0000 Xxxx Xxxx Xxxxxx 0000 Xxxx Xxxx Xxxxxx Xx Pere
1.110 East 13414 Xxxxxxx Avenue East 00000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx
1.111 000 Xxxxx Xxxxxxxxx Xxxxxx 000 Xxxxx Xxxxxxxxx Xxxxxx Xxxxxxxxxx
1.112 0000 Xxxxx Xxxxxxxxx Xxxxxx 0000 Xxxxx Xxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx
CROSS
COLLATER-
ALIZED MASTER
LOAN CUT-OFF DATE (MORTGAGE MORTGAGE SERVICING ARD LOAN
NUMBER STATE ZIP CODE COUNTY PRINCIPAL BALANCE LOAN GROUP) RATE FEE RATE (YES/NO)? ARD
-----------------------------------------------------------------------------------------------------------------------
1 Various Various Various 100,000,000.00 (Note 1) No 6.5875% 0.0400% No
1.1 NE 68138 Sarpy
1.2 WI 54304 Xxxxx
1.3 WI 54115 Xxxxx
1.4 WI 54304 Xxxxx
1.5 CA 96003 Shasta
1.6 ID 83814 Kootenai
1.7 ID 83716 Ada
1.8 MN 00000 Xxxxx Xxxxx
0.0 XX 00000 Xxxxxxx
1.10 WI 53717 Xxxx
0.00 XX 00000 Outagamie
1.12 WI 53704 Xxxx
0.00 XX 00000 Blue Earth
1.14 XX 00000 Xxxxxxx
0.00 XX 00000 Xxxxxxx
0.00 XX 00000 Xxxxx
0.00 XX 00000 Xxxxx
1.18 XX 00000 Xxxxxx
0.00 XX 00000 Xxxxxxx
0.00 XX 00000 Xxxxxxx
1.21 WI 00000 Xxxx xx Xxx
0.00 XX 00000 Marquette
1.23 SD 57105 Xxxxxxxxx
0.00 XX 00000 Xxxxxxxxxx
0.00 XX 00000 Winnebago
1.26 WI 00000 Xxx Xxxxxx
0.00 XX 00000 Wood
1.28 MT 59801 Xxxxxxxx
0.00 XX 00000 Winnebago
1.30 WI 54136 Outagamie
1.31 XX 00000 Xxxxxxx
0.00 XX 00000 Racine
1.33 XX 00000 Xxxxxxx
0.00 XX 00000 Wood
1.35 WI 53545 Rock
1.36 MN 55912 Mower
1.37 MN 56304 Xxxxxx
0.00 XX 00000 Xxxxx
1.39 WI 53713 Dane
1.40 XX 00000 Xxxx
0.00 XX 00000 Kenosha
1.42 MT 59102 Xxxxxxxxxxx
0.00 XX 00000 Jefferson
1.44 IL 62650 Xxxxxx
1.45 XX 00000 Xxxxxxxxx
0.00 XX 00000 Xxxxxxxxxx
0.00 XX 00000 Winnebago
1.48 WI 53511 Rock
1.49 WI 00000 Xx Xxxxxx
0.00 XX 00000 Xxxx
0.00 XX 00000 Sheboygan
1.52 UT 84088 Xxxx Xxxx
0.00 XX 00000 Xxxx Xxxx
0.00 XX 00000 Winona
1.55 XX 00000 Xxxxxx
0.00 XX 00000 Xxxxxxx
1.57 WI 53024 Ozaukee
1.58 WI 54601 La Crosse
1.59 XX 00000 Xxxx
0.00 XX 00000 Xxxxxxxx
0.00 XX 00000 Xxxxx
1.62 WI 00000 Xxxxxxxxx
1.63 SD 57201 Xxxxxxxxx
0.00 XX 00000 Marathon
1.65 WI 54481 Xxxxxxx
0.00 XX 00000 XxXxxx
1.67 UT 84010 Xxxxx
1.68 SD 57401 Xxxxx
1.69 MT 59404 Cascade
1.70 MT 00000 Xxxxx xxx Xxxxx
0.00 XX 00000 Xxxxxxx
1.72 XX 00000 Xxxxxxxxx
1.73 UT 84405 Xxxxx
1.74 IA 50401 Cerro Gordo
1.75 UT 84041 Xxxxx
1.76 ID 83706 Ada
1.77 UT 84120 Xxxx Xxxx
0.00 XX 00000 Xxxxxx
1.79 WI 53115 Xxxxxxxx
0.00 XX 00000 Sarpy
1.81 UT 84404 Xxxxx
1.82 WI 00000 Xxxxx Xxxxx
0.00 XX 00000 Green
1.84 MN 56007 Xxxxxxxx
1.85 XX 00000 Xxxxxxx
0.00 XX 00000 Xxxxxxx
0.00 XX 00000 Xxxxx
0.00 XX 00000 Xxxxxx
1.89 ID 83651 Canyon
1.90 XX 00000 Xxxxxxxx
0.00 XX 00000 Marinette
1.92 UT 84604 Utah
1.93 ID 00000 Xxxx Xxxxx
0.00 XX 00000 Xxxx
0.00 XX 00000 Bannock
1.96 ID 83404 Xxxxxxxxxx
0.00 XX 00000 Xxx
1.98 WA 00000 Xxxxx Xxxxx
0.00 XX 00000 Yakima
1.100 IL 61032 Xxxxxxxxxx
1.101 UT 84660 Utah
1.102 UT 84341 Cache
1.103 UT 84302 Xxx Xxxxx
0.000 XX 00000 Jefferson
1.105 ID 00000 Xxx Xxxxx
0.000 XX 00000 Xxxxx
1.107 WI 54313 Xxxxx
1.108 IL 00000 Xxxxxx
0.000 XX 00000 Xxxxx
1.110 XX 00000 Spokane
1.111 IA 00000 Xxx Xxxxxx
0.000 XX 00000 Ozaukee
INTEREST ORIGINAL REMAINING
RESERVE TERM TO TERM TO STATED
MORTGAGE STATED PERIODIC PAYMENT MATURITY MATURITY ORIGINAL
LOAN ADDITIONAL INTEREST LOAN GRACE MATURITY ON FIRST DUE DATE / ARD / ARD AMORTIZATION
NUMBER RATE AFTER ARD (YES/NO)? LOAN TYPE PERIOD (DAYS) DATE AFTER CLOSING (MONTHS) (MONTHS) TERM (MONTHS)
------------------------------------------------------------------------------------------------------------------------------------
1 Yes Balloon 3 (Note 4) 6/8/16 637,833.41 (Note 7) 120 120 360
1.1
1.2
1.3
1.4
1.5
1.6
1.7
1.8
1.9
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
1.69
1.70
1.71
1.72
1.73
1.74
1.75
1.76
1.77
1.78
1.79
1.80
1.81
1.82
1.83
1.84
1.85
1.86
1.87
1.88
1.89
1.90
1.91
1.92
1.93
1.94
1.95
1.96
1.97
1.98
1.99
1.100
1.101
1.102
1.103
1.104
1.105
1.106
1.107
1.108
1.109
1.110
1.111
1.112
ESCROWED
ESCROWED REPLACE-
STATED ANNUAL MENT
REMAINING DEFEASANCE PROPERTY REAL ESCROWED RESERVES
LOAN AMORTIZATION LOAN PROPERTY SIZE LOCKBOX ESTATE ANNUAL INITIAL
NUMBER TERM (MONTHS) (YES/NO)? BORROWER'S INTEREST SIZE TYPE (YES/NO)? TAXES INSURANCE DEPOSIT
------------------------------------------------------------------------------------------------------------------------------------
1 360 Yes Fee Simple and Leasehold 10,974,960 SF In-Place Hard 0 (Note 2) 0 (Note 2) 0
1.1 Fee Simple 535,000 SF
1.2 Fee Simple 218,323 SF
1.3 Fee Simple 494,000 SF
1.4 Fee Simple 126,658 SF
1.5 Fee Simple 94,418 SF
1.6 Fee Simple 84,379 SF
1.7 Fee Simple 347,000 SF
1.8 Fee Simple 119,842 SF
1.9 Fee Simple 100,803 SF
1.10 Fee Simple 99,101 SF
1.11 Fee Simple 112,794 SF
1.12 Fee Simple 94,120 SF
1.13 Fee Simple 90,494 SF
1.14 Fee Simple 90,499 SF
1.15 Fee Simple 90,499 SF
1.16 Fee Simple 97,537 SF
1.17 Fee Simple 105,923 SF
1.18 Fee Simple 106,238 SF
1.19 Fee Simple 90,514 SF
1.20 Fee Simple 90,441 SF
1.21 Fee Simple 102,205 SF
1.22 Fee Simple 124,761 SF
1.23 Fee Simple 90,585 SF
1.24 Fee Simple 94,106 SF
1.25 Fee Simple 94,225 SF
1.26 Fee Simple 94,705 SF
1.27 Fee Simple 100,247 SF
1.28 Fee Simple 102,327 SF
1.29 Fee Simple 90,464 SF
1.30 Fee Simple 98,030 SF
1.31 Fee Simple 94,076 SF
1.32 Fee Simple 100,010 SF
1.33 Fee Simple 99,279 SF
1.34 Fee Simple 101,483 SF
1.35 Fee Simple 98,005 SF
1.36 Fee Simple 90,461 SF
1.37 Fee Simple 90,414 SF
1.38 Fee Simple 77,690 SF
1.39 Fee Simple 97,931 SF
1.40 Fee Simple 103,875 SF
1.41 Fee Simple 97,961 SF
1.42 Fee Simple 100,800 SF
1.43 Fee Simple 96,325 SF
1.44 Fee Simple 101,688 SF
1.45 Fee Simple 86,739 SF
1.46 Fee Simple 94,130 SF
1.47 Fee Simple 81,171 SF
1.48 Fee Simple 93,845 SF
1.49 Fee Simple 94,413 SF
1.50 Fee Simple 98,160 SF
1.51 Fee Simple 97,859 SF
1.52 Fee Simple 94,230 SF
1.53 Fee Simple 94,222 SF
1.54 Fee Simple 84,375 SF
1.55 Fee Simple 94,237 SF
1.56 Fee Simple 71,846 SF
1.57 Fee Simple 83,363 SF
1.58 Fee Simple 88,161 SF
1.59 Fee Simple 71,847 SF
1.60 Fee Simple 91,012 SF
1.61 Fee Simple 65,459 SF
1.62 Fee Simple 87,954 SF
1.63 Fee Simple 66,745 SF
1.64 Fee Simple 88,030 SF
1.65 Fee Simple 90,334 SF
1.66 Fee Simple 71,806 SF
1.67 Fee Simple 100,761 SF
1.68 Fee Simple 66,735 SF
1.69 Fee Simple 90,505 SF
1.70 Fee Simple 116,992 SF
1.71 Fee Simple 77,559 SF
1.72 Fee Simple 94,250 SF
1.73 Fee Simple 94,248 SF
1.74 Fee Simple 90,430 SF
1.75 Fee Simple 94,013 SF
1.76 Fee Simple 100,843 SF
1.77 Fee Simple 94,336 SF
1.78 Fee Simple 66,781 SF
1.79 Fee Simple 75,844 SF
1.80 Fee Simple 67,256 SF
1.81 Fee Simple 94,230 SF
1.82 Fee Simple 75,775 SF
1.83 Fee Simple 73,956 SF
1.84 Fee Simple 66,784 SF
1.85 Fee Simple 66,827 SF
1.86 Fee Simple 70,118 SF
1.87 Fee Simple 83,179 SF
1.88 Fee Simple 66,713 SF
1.89 Fee Simple 90,526 SF
1.90 Fee Simple 73,956 SF
1.91 Fee Simple 83,180 SF
1.92 Fee Simple 94,042 SF
1.93 Fee Simple 94,068 SF
1.94 Fee Simple 75,844 SF
1.95 Fee Simple 90,430 SF
1.96 Fee Simple 90,510 SF
1.97 Fee Simple 71,839 SF
1.98 Fee Simple 83,211 SF
1.99 Leasehold 94,136 SF
1.100 Fee Simple 75,844 SF
1.101 Fee Simple 71,345 SF
1.102 Leasehold 94,225 SF
1.103 Fee Simple 71,340 SF
1.104 Fee Simple 75,063 SF
1.105 Leasehold 94,091 SF
1.106 Fee Simple 15,060 SF
1.107 Fee Simple 14,265 SF
1.108 Fee Simple 60,985 SF
1.109 Fee Simple 28,953 SF
1.110 Leasehold 90,590 SF
1.111 Leasehold 80,327 SF
1.112 Fee Simple 12,821 SF
ESCROWED
REPLACEMENT
RESERVES INITIAL
CURRENT DEFERRED INITIAL ENVIRONMENTAL
LOAN ANNUAL ESCROWED TI/LC RESERVES ESCROWED TI/LC RESERVES MAINTENANCE ENVIRONMENTAL HOLDBACK INSURANCE
NUMBER DEPOSIT INITIAL DEPOSIT CURRENT ANNUAL DEPOSIT DEPOSIT DEPOSIT RESERVE LOC POLICY
-------------------------------------------------------------------------------------------------------------------------------
1 0 (Note 2) 0 0 (Note 2) 482,265 0
1.1 0
1.2 3,875 0
1.3 0
1.4 0
1.5 0
1.6 0
1.7 0
1.8 0
1.9 16,625 0
1.10 0
1.11 0
1.12 2,188 0
1.13 15,000 0
1.14 6,250 0
1.15 8,550 0
1.16 0
1.17 0
1.18 9,194 0
1.19 0
1.20 3,125 0
1.21 0
1.22 13,906 0
1.23 0
1.24 0
1.25 0
1.26 0
1.27 0
1.28 1,875 0
1.29 0
1.30 21,250 0
1.31 12,125 0
1.32 0
1.33 0
1.34 2,750 0
1.35 0
1.36 0
1.37 10,313 0
1.38 16,000 0
1.39 0
1.40 6,250 0
1.41 3,125 0
1.42 2,500 0
1.43 2,250 0
1.44 4,063 0
1.45 7,500 0
1.46 0
1.47 0
1.48 1,250 0
1.49 0
1.50 0
1.51 0
1.52 0
1.53 4,000 0
1.54 22,563 0
1.55 72,698 0
1.56 0
1.57 0
1.58 0
1.59 21,238 0
1.60 4,688 0
1.61 6,250 0
1.62 0
1.63 0
1.64 0
1.65 0
1.66 7,813 0
1.67 1,250 0
1.68 0
1.69 2,881 0
1.70 1,875 0
1.71 0
1.72 13,250 0
1.73 4,250 0
1.74 0
1.75 0
1.76 0
1.77 10,111 0
1.78 0
1.79 0
1.80 3,125 0
1.81 0
1.82 7,813 0
1.83 13,125 0
1.84 0
1.85 0
1.86 12,250 0
1.87 1,875 0
1.88 0
1.89 17,500 0
1.90 6,731 0
1.91 0
1.92 0
1.93 21,856 0
1.94 0
1.95 14,000 0
1.96 0
1.97 3,688 0
1.98 1,250 0
1.99 3,250 0
1.100 4,813 0
1.101 1,625 0
1.102 1,250 0
1.103 0
1.104 1,250 0
1.105 0
1.106 0
1.107 0
1.108 22,788 0
1.109 0
1.110 1,250 0
1.111 0
1.112 0
