Exhibit 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21, 2005
(this "Agreement"), is entered into between Countrywide Commercial Real Estate
Finance, Inc. (the "Seller") and Xxxxxxx Xxxxx Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage
investment conduit" ("REMIC") elections will be made with respect to most of
the Trust Fund. The Trust Fund will be created and the Certificates will be
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2005
(the "Pooling and Servicing Agreement"), among the Purchaser as depositor,
Midland Loan Services, Inc. as master servicer (in such capacity, the "Master
Servicer") and as special servicer (in such capacity, the "Special Servicer"),
and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized terms used
but not defined herein (including the schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of June 21, 2005 (the "Underwriting Agreement"), with Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), for itself and as
representative of Countrywide Securities Corporation ("Countrywide"), PNC
Capital Markets, Inc. ("PNC") and Wachovia Capital Markets, LLC ("Wachovia";
Xxxxxxx Xxxxx, Countrywide, PNC and Wachovia, collectively, in such capacity,
the "Underwriters"), whereby the Purchaser will sell to the Underwriters all
of the Certificates that are to be registered under the Securities Act of
1933, as amended (such Certificates, the "Publicly-Offered Certificates"). The
Purchaser has also entered into a Certificate Purchase Agreement, dated as of
June 21, 2005 (the "Certificate Purchase Agreement"), with Xxxxxxx Xxxxx, for
itself and as representative of Countrywide (together in such capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the Initial
Purchasers all of the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to
have an aggregate principal balance of $456,814,657 (the "Countrywide Mortgage
Loan Balance") (subject to a variance of plus or minus 5.0%) as of the close
of business on the Cut-off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The Countrywide
Mortgage Loan Balance, together with the aggregate principal balance of the
Other Mortgage Loans as of the Cut-off Date (after giving effect to any
payments due on or before such date, whether or not such payments are
received), is expected to equal an aggregate principal balance (the "Cut-off
Date Pool Balance") of $1,737,992,952 (subject to a variance of plus or minus
5%). The purchase and sale of the Mortgage Loans shall take place on June 29,
2005 or such other date as shall be mutually acceptable to the parties to this
Agreement (the "Closing Date"). The consideration (the "Purchase
Consideration") for the Mortgage Loans shall be equal to (i) 105.1066% of the
Countrywide Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$1,981,649, which amount represents the amount of interest accrued on the
Countrywide Mortgage Loan Balance at the related Net Mortgage Rate for the
period from and including the Cut-off Date up to but not including the Closing
Date.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, the Closing Date Deposit (in the amount of $8,444.76) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall be
delivered to the account specified by the Master Servicer by wire transfer of
immediately available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Purchase Consideration and the satisfaction or waiver of the conditions to
closing set forth in Section 5 of this Agreement (which conditions shall be
deemed to have been satisfied or waived upon the Seller's receipt of the
Purchase Consideration), the Seller does hereby sell, transfer, assign, set
over and otherwise convey to the Purchaser, without recourse (except as set
forth in this Agreement), all the right, title and interest of the Seller in
and to the Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a servicing released basis, together with all of the Seller's right,
title and interest in and to the proceeds of any related title, hazard,
primary mortgage or other insurance proceeds and all of the Seller's right,
title and interest in and to the Closing Date Deposit. The Mortgage Loan
Schedule, as it may be amended, shall conform to the requirements set forth in
this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date). All scheduled payments of principal and
interest due on or before the Cut-off Date but collected after the Cut-off
Date, and recoveries of principal and interest collected on or before the
Cut-off Date (only in respect of principal and interest on the Mortgage Loans
due on or before the Cut-off Date and principal prepayments thereon), shall
belong to, and be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on or before
the Closing Date, the documents and instruments specified below with respect
to each Mortgage Loan that are Specially Designated Mortgage Loan Documents
and (ii) on or before the date that is 30 days after the
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Closing Date, the remaining documents and instruments specified below that are
not Specially Designated Mortgage Loan Documents with respect to each Mortgage
Loan (the documents and instruments specified below and referred to in clauses
(i) and (ii) preceding, collectively, a "Mortgage File"). All Mortgage Files
so delivered will be held by the Trustee in escrow for the benefit of the
Seller at all times prior to the Closing Date. Each Mortgage File shall
contain the following documents:
(i) the original executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution thereof
(or a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
Xxxxx Fargo Bank, N.A., as trustee for the registered holders of Xxxxxxx
Xxxxx Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-MCP1, or in blank;
(ii) an original or copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office)
with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered in
blank) and any missing recording information or a certified copy of that
assignment as sent for recording), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage) and (c) any other recorded document relating to the subject
Mortgage Loan otherwise included in the Mortgage File, in favor of Xxxxx
Fargo Bank, N.A., as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series 2005-MCP1, or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above) in favor of Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Xxxxxxx Xxxxx Mortgage Trust 2005-MCP1, Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed;
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(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or a marked version of the policy that has been
executed by an authorized representative of the title company or an
agreement to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company) to issue
such title insurance policy;
(viii) any filed copies or other evidence of filing of any prior UCC
Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable public
office for UCC Financing Statements, a UCC Financing Statement
assignment, in form suitable for filing in favor of Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates, Series
2005-MCP1, as assignee, or in blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management agreement, any
agreed upon procedures letter, any lockbox or cash management agreements,
any environmental reports or any letter of credit, in each case relating
to the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan, promptly (and
in any event within 90 days following the later of the Closing Date and the
delivery of each Mortgage, Assignment of Leases, recordable document and UCC
Financing Statement to the Trustee) cause to be submitted for recording or
filing, as the case may be, in the appropriate public office for real property
records or UCC Financing Statements, each assignment of Mortgage, assignment
of Assignment of Leases and any other recordable documents relating to each
such Mortgage Loan in favor of the Trustee that is referred to in clause (iv)
of the definition of "Mortgage File" and each UCC Financing Statement
assignment in favor of the Trustee and that is referred to in clause (viii) of
the definition of "Mortgage File." Each such assignment and UCC Financing
Statement assignment shall reflect that the recorded original should be
returned by the public recording office to the Trustee following recording,
and each such assignment and UCC Financing Statement assignment shall reflect
that the file copy thereof should be returned to the Trustee following filing;
provided, that in those instances where the public recording office
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retains the original assignment of Mortgage or assignment of Assignment of
Leases, the Recording/Filing Agent shall obtain therefrom a certified copy of
the recorded original. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then
the Seller shall prepare a substitute therefor or cure such defect or cause
such to be done, as the case may be, and the Seller shall deliver such
substitute or corrected document or instrument to the Trustee (or, if the
Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such recording, filing and delivery contemplated in the preceding paragraph,
including, without limitation, any costs and expenses that may be incurred by
the Trustee in connection with any such recording, filing or delivery
performed by the Trustee at the Seller's request and the fees of the
Recording/Filing Agent.
(e) All such other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are reasonably
necessary for the ongoing administration and/or servicing of such Mortgage
Loans by the Master Servicer in connection with its duties under the Pooling
and Servicing Agreement, and (c) are in the possession or under the control of
the Seller, together with all unapplied escrow amounts and reserve amounts in
the possession or under the control of the Seller that relate to the Mortgage
Loans, shall be delivered or caused to be delivered by the Seller to the
Master Servicer (or, at the direction of the Master Servicer, to the
appropriate sub-servicer); provided that the Seller shall not be required to
deliver any draft documents, privileged or other communications, credit
underwriting or due diligence analyses, credit committee briefs or memoranda
or other internal approval documents or data or internal worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the Trustee,
for its administrative convenience in reviewing the Mortgage Files, a mortgage
loan checklist for each Mortgage Loan. The foregoing sentence notwithstanding,
the failure of the Seller to deliver a mortgage loan checklist or a complete
mortgage loan checklist shall not give rise to any liability whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other person because
the delivery of the mortgage loan checklist is being provided to the Trustee
solely for its administrative convenience.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller, which secure any Mortgage Loan.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the most recent
earlier date for which such data is available) contemplated by the CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
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(i) The Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of California and the Seller
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement by it, and has the power and
authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith, and
(assuming the due authorization, execution and delivery hereof by the
Purchaser) this Agreement constitutes the valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by (A) laws
relating to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's certificate of incorporation or bylaws,
(B) violate any law or regulation or any administrative decree or order
to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is
bound, which default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or materially and adversely affect its performance hereunder.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Seller or its properties or materially and
adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution of this Agreement or the
performance by the Seller of its obligations under this Agreement (except
to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of or compliance by the Seller with this
Agreement or the consummation of the transactions
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contemplated by this Agreement except as have previously been obtained,
and no bulk sale law applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Seller, results or will
result in the creation or imposition of any lien on any of the Seller's
assets or property that would have a material adverse effect upon the
Seller's ability to perform its duties and obligations under this
Agreement or materially impair the ability of the Purchaser to realize on
the Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Seller, threatened against the Seller in any
court or by or before any other governmental agency or instrumentality
which would, in the Seller's good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Purchase Consideration. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and the
Trustee for the benefit of the Certificateholders as of the Closing Date
(unless a different date is specified therein), with respect to (and solely
with respect to) each Mortgage Loan, subject, however, to the exceptions set
forth on Annex A to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section 2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not later than 90
days from such discovery or receipt of such notice (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), if such Document Defect or Breach materially and
adversely affects the value of the related Mortgage Loan or the interests of
the Certificateholders therein, cure such Document Defect or Breach, as the
case may be, in all material respects, which shall include payment of losses
and any Additional Trust Fund Expenses associated therewith or, if such
Document Defect or Breach (other than omissions due solely to a document not
having been returned by the related recording office) cannot be cured within
such 90-day period, (i) repurchase the affected Mortgage Loan
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(which, for the purposes of this clause (i), shall include an REO Loan) at the
applicable Purchase Price (as defined in the Pooling and Servicing Agreement)
not later than the end of such 90-day period or (ii) substitute a Qualified
Substitute Mortgage Loan for such affected Mortgage Loan (which, for purposes
of this clause (ii), shall include an REO Loan) not later than the end of such
90-day period (and in no event later than the second anniversary of the
Closing Date) and pay the Master Servicer for deposit into the Collection
Account any Substitution Shortfall Amount in connection therewith; provided,
however, that, unless the Document Defect or Breach would cause the Mortgage
Loan not to be a Qualified Mortgage, if such Document Defect or Breach is
capable of being cured but not within such 90-day period and the Seller has
commenced and is diligently proceeding with the cure of such Document Defect
or Breach within such 90-day period, the Seller shall have an additional 90
days to complete such cure (or, failing such cure, to repurchase or substitute
the related Mortgage Loan (which, for purposes of such repurchase or
substitution, shall include an REO Loan)); and provided, further, that with
respect to such additional 90-day period, the Seller shall have delivered an
officer's certificate to the Trustee setting forth the reason(s) such Document
Defect or Breach is not capable of being cured within the initial 90-day
period and what actions the Seller is pursuing in connection with the cure
thereof and stating that the Seller anticipates that such Document Defect or
Breach will be cured within the additional 90-day period; and provided,
further, that no Document Defect (other than with respect to a Specially
Designated Mortgage Loan Document) shall be considered to materially and
adversely affect the interests of the Certificateholders or the value of the
related Mortgage Loan unless the document with respect to which the Document
Defect exists is required in connection with an imminent enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan, defending any
claim asserted by any borrower or third party with respect to the Mortgage
Loan, establishing the validity or priority of any lien on any collateral
securing the Mortgage Loan or for any immediate servicing obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a "Crossed Loan
Group"), which Document Defect or Breach does not constitute a Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such Crossed
Loan Group (without regard to this paragraph) and is not cured as provided for
above, shall be deemed to constitute a Document Defect or Breach, as the case
may be, as to each other Crossed Loan in the subject Crossed Loan Group for
purposes of this paragraph and the Seller shall be required to repurchase or
substitute all such Crossed Loans unless (1) the weighted average debt service
coverage ratio for all the remaining Crossed Loans for the four calendar
quarters immediately preceding such repurchase or substitution is not less
than the weighted average debt service coverage ratio for all such Crossed
Loans, including the affected Crossed Loan, for the four calendar quarters
immediately preceding such repurchase or substitution, and (2) the weighted
average loan to-value ratio for the remaining Crossed Loans determined at the
time of repurchase or substitution based upon an appraisal obtained by the
Special Servicer at the expense of the Seller shall not be greater than the
weighted average loan-to-value ratio for all such Crossed Loans, including the
affected Crossed Loan determined at the time of repurchase or substitution
based upon an appraisal obtained by the Special Servicer at the expense of the
Seller; provided, that if such debt service coverage and loan-to-value
criteria are satisfied, any other Crossed Loan (that is not the Crossed Loan
directly affected by the subject Document Defect or Breach), shall be released
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from its cross-collateralization and cross-default provision so long as such
Crossed Loan (that is not the Crossed Loan directly affected by the subject
Document Defect or Breach) is held in the Trust Fund; and provided, further,
that the repurchase or replacement of less than all such Crossed Loans and the
release of any Crossed Loan from a cross-collateralization and cross-default
provision shall be further subject to (i) the delivery by the Seller to the
Trustee, at the expense of the Seller, of an Opinion of Counsel to the effect
that such release would not cause either of REMIC I or REMIC II to fail to
qualify as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions and (ii) the consent of the Controlling Class Representative
(if one is then acting), which consent shall not be unreasonably withheld or
delayed. In the event that one or more of such other Crossed Loans satisfy the
aforementioned criteria, the Seller may elect either to repurchase or
substitute for only the affected Crossed Loan as to which the related Document
Defect or Breach exists or to repurchase or substitute for all of the Crossed
Loans in the related Crossed Loan Group. All documentation relating to the
termination of the cross-collateralization provisions of a Crossed Loan being
repurchased shall be prepared at the expense of the Seller and, where
required, with the consent of the related borrower. For a period of two years
from the Closing Date, so long as there remains any Mortgage File relating to
a Mortgage Loan as to which there is any uncured Document Defect or Breach
known to the Seller, the Seller shall provide, once every ninety days, the
officer's certificate to the Trustee described above as to the reason(s) such
Document Defect or Breach remains uncured and as to the actions being taken to
pursue cure; provided, however, that, without limiting the effect of the
foregoing provisions of this Section 3(c), if such Document Defect or Breach
shall materially and adversely affect the value of such Mortgage Loan or the
interests of the holders of the Certificates therein (subject to the last
proviso in the sole sentence of the preceding paragraph), the Seller shall in
all cases on or prior to the second anniversary of the Closing Date either
cause such Document Defect or Breach to be cured or repurchase or substitute
for the affected Mortgage Loan. The delivery of a commitment to issue a policy
of lender's title insurance as described in representation 8 set forth on
Schedule I hereto in lieu of the delivery of the actual policy of lender's
title insurance shall not be considered a Document Defect or Breach with
respect to any Mortgage File if such actual policy of insurance is delivered
to the Trustee or a Custodian on its behalf not later than the 90th day
following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c) while the Trustee continues to hold any other Crossed Loans in
such Crossed Loan Group, the Seller and the Purchaser shall not enforce any
remedies against the other's Primary Collateral (as defined below), but each
is permitted to exercise remedies against the Primary Collateral securing its
respective Crossed Loan(s), so long as such exercise does not materially
impair the ability of the other party to exercise its remedies against the
Primary Collateral securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability of
the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loan(s) held by such party, then the Seller
and the Purchaser shall forbear from exercising such remedies until the
Mortgage Loan documents evidencing and securing the relevant Crossed Loans can
be modified in a manner consistent with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with
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the Mortgage Loan documents, or, if the related Mortgage Loan documents do not
so provide, then on a pro rata basis based upon their outstanding Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed Loan is
modified to terminate the related cross-collateralization and/or cross-default
provisions, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any property as to
which the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released), (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the Mortgage Loan
documents and the Seller provides an opinion of counsel to the effect that
such release would not cause either of REMIC I or REMIC II to fail to qualify
as a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day under the
REMIC Provisions and (iii) each Rating Agency then rating the Certificates
shall have provided written confirmation that such release would not cause the
then-current ratings of the Certificates rated by it to be qualified,
downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be the cure
of such breach by the Seller, which cure shall be effected through the payment
by the Seller of such costs and expenses (without regard to whether such costs
and expenses are material or not) specified in such representation that have
not, at the time of such cure, been received by the Master Servicer or the
Special Servicer from the related Mortgagor and not a repurchase or
substitution of the related Mortgage Loan. Following the Seller's remittance
of funds in payment of such costs and expenses, the Seller shall be deemed to
have cured the breach of representation 30 in all respects. To the extent any
fees or expenses that are the subject of a cure by the Seller are subsequently
obtained from the related Mortgagor, the cure payment made by the Seller shall
be returned to the Seller. Notwithstanding the prior provisions of this
paragraph, the Seller, acting in its sole discretion, may effect a repurchase
or substitution (in accordance with the provisions of this Section 3(c)
setting forth the manner in which a Mortgage Loan may be repurchased or
substituted) of a Mortgage Loan, as to which representation 30 set forth on
Schedule I has been breached, in lieu of paying the costs and expenses that
were the subject of the breach of representation 30 set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the applicable
Purchase Price (as defined in the Pooling and Servicing Agreement) or
Substitution Shortfall Amount(s), as applicable, in the Collection
10
Account, and, if applicable, the delivery of the Mortgage File(s) and the
Servicing File(s) for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the Master Servicer, respectively, (i) the Trustee shall be
required to execute and deliver such endorsements and assignments as are
provided to it by the Master Servicer or the Seller, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
Seller the legal and beneficial ownership of each repurchased Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the Seller, upon
delivery to each of them of a receipt executed by the Seller, all portions of
the Mortgage File and other documents pertaining to such Mortgage Loan
possessed by it, and (iii) the Master Servicer and the Special Servicer shall
release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date for such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related date of substitution
shall be part of REMIC I, as applicable. No substitution of a Qualified
Substitute Mortgage Loan for a deleted Mortgage Loan shall be permitted under
this Agreement if, after such substitution, the aggregate of the Stated
Principal Balances of all Qualified Substitute Mortgage Loans which have been
substituted for deleted Mortgage Loans exceeds 10% of the aggregate Cut-off
Date Balance of all the Mortgage Loans and the Other Mortgage Loans. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan on or
prior to the related date of substitution shall not be part of the Trust Fund
or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit of the
Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and the Purchaser
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Agreement by it, and has the power and authority to
execute, deliver and perform this Agreement and all transactions contemplated
hereby.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming
the due authorization, execution and delivery
11
hereof by the Seller) this Agreement constitutes the valid, legal and binding
agreement of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforcement may be limited by (A) laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization, receivership
or moratorium, (B) other laws relating to or affecting the rights of creditors
generally, or (C) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(c) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate any law or regulation or any administrative decree or
order to which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other instrument
to which the Purchaser is a party or by which the Purchaser is bound, which
default might have consequences that would, in the Purchaser's reasonable and
good faith judgment, materially and adversely affect the condition (financial
or other) or operations of the Purchaser or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any other
corporate restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Purchaser's reasonable and good faith judgment,
materially and adversely affect the ability of the Purchaser to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by the Purchaser
of its obligations under this Agreement (except to the extent such consent has
been obtained).
(e) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of, or compliance by
the Purchaser with, this Agreement, or the consummation by the Purchaser of
any transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser
as a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the aggregate Purchase Consideration.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to enter into and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or other governmental
12
agency or body, which default might have consequences that would, in the
Purchaser's reasonable and good faith judgment, materially and adversely
affect the condition (financial or other) or operations of the Purchaser or
its properties or might have consequences that would materially and adversely
affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP
on the Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4
of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Seller, the Underwriters and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all
documents represented to have been or required to be delivered to the Trustee
and the Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall have the ability
to comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date;
(f) One or more letters from the independent accounting firms of
Ernst & Young LLP and PricewaterhouseCoopers LLP, in form satisfactory to the
Purchaser and relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus and Prospectus Supplement,
respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of June 21, 2005,
among the Seller, Xxxxxxx Xxxxx Mortgage Lending, Inc., PNC Bank, National
Association, the Purchaser, the Underwriters and the Initial Purchasers. Both
parties agree to use their best reasonable efforts to perform their respective
obligations hereunder in a manner that will enable the Purchaser to purchase
the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
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(a) (i) This Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by the parties
thereto and (iii) the Servicing Rights Purchase Agreement, dated as of June
29, 2005, between the Seller and Midland Loan Services, Inc., duly executed by
such parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which
the Purchaser, the Underwriters and the Initial Purchasers may rely, to the
effect that: (i) the representations and warranties of the Seller in this
Agreement are true and correct in all material respects at and as of the
Closing Date with the same effect as if made on such date; and (ii) the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part that are required under this Agreement to be
performed or satisfied at or prior to the Closing Date;
(c) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or
therein, was at the respective times of such signing and delivery, and is as
of the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on
such documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the effect
that (i) such officer has carefully examined the Specified Portions (as
defined below) of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement or as of
the Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the
Mortgage Loans, in light of the circumstances under which they were made, not
misleading, and (ii) such officer has carefully examined the Specified
Portions of the Private Placement Memorandum, dated as of June 21, 2005 (the
"Memorandum") (pursuant to which certain classes of the Private Certificates
are being privately offered) and nothing has come to his attention that would
lead him to believe that the Specified Portions of the Memorandum, as of the
date thereof or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein related to the Mortgage Loans, in the light of the circumstances under
which they were made, not misleading. The "Specified Portions" of the
Prospectus Supplement shall consist of Annex A-1 thereto, entitled "Certain
Characteristics of the Mortgage Loans" (insofar as the information contained
in Annex A-1 relates to the Mortgage Loans sold by the Seller hereunder),
Annex A-2 to the Prospectus Supplement, entitled "Certain Statistical
Information Regarding the Mortgage Loans" (insofar as the information
contained in Annex A-2 relates to the Mortgage Loans sold by the Seller
hereunder), Annex B to the Prospectus Supplement entitled "Certain
Characteristics Regarding Multifamily Properties" (insofar as the information
contained in Annex B relates to the Mortgage Loans sold by the Seller
hereunder), Annex C to the Prospectus Supplement, entitled "Structural and
Collateral
14
Term Sheet" (insofar as the information contained in Annex C relates to the
Mortgage Loans sold by the Seller hereunder), the diskette which accompanies
the Prospectus Supplement (insofar as such diskette is consistent with Annex
X-0, Xxxxx X-0 and/or Annex B), and the following sections of the Prospectus
Supplement (only to the extent that any such information relates to the Seller
or the Mortgage Loans sold by the Seller hereunder and exclusive of any
statements in such sections that purport to describe the servicing and
administration provisions of the Pooling and Servicing Agreement and exclusive
of aggregated numerical information that includes the Other Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan Sellers,"
"Summary of Prospectus Supplement--The Mortgage Loans And The Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool". The
"Specified Portions" of the Memorandum shall consist of the Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors
or a committee thereof authorizing the Seller's entering into the transactions
contemplated by this Agreement, (ii) the certificate of incorporation and
bylaws of the Seller, and (iii) a certificate of good standing of the Seller
issued by the State of California not earlier than thirty (30) days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller relating to
corporate and enforceability matters (which opinion may be from in-house
counsel, outside counsel or a combination thereof), reasonably satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the Initial
Purchasers and each of the Rating Agencies, together with such other written
opinions, including as to insolvency matters, as may be required by the Rating
Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of the
transaction expenses incurred in connection with the transactions contemplated
herein as set forth in the closing statement prepared by the Purchaser and
delivered to and approved by the Seller on or before the Closing Date, and in
the memorandum of understanding to which the Seller and the Purchaser (or
affiliates thereof) are parties with respect to the transactions contemplated
by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt
or other obligation of the Seller. However, if, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be
property of the Seller, then, (a) it is the express intent of the parties that
such conveyance be deemed a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller, and (b) (i) this
Agreement shall also be deemed to be a security agreement within the meaning
of Article 9 of the UCC of the applicable jurisdiction; (ii) the conveyance
provided for in Section 2 of this Agreement shall be deemed to be a grant by
the Seller to the Purchaser of a security interest in
15
all of the Seller's right, title and interest in and to the Mortgage Loans,
and all amounts payable to the holder of the Mortgage Loans in accordance with
the terms thereof, and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation, all amounts, other than investment
earnings (other than investment earnings required by Section 3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest Shortfalls),
from time to time held or invested in the Collection Account, the Distribution
Account or, if established, the REO Account whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 of this
Agreement shall be deemed to be an assignment of any security interest created
hereunder; (iv) the possession by the Trustee or any of its agents, including,
without limitation, the Custodian, of the Mortgage Notes, and such other items
of property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be possession by the secured party for purposes of
perfecting the security interest pursuant to Section 9-313 of the UCC of the
applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from,
financial intermediaries, bailees or agents (as applicable) of the secured
party for the purpose of perfecting such security interest under applicable
law. The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement. The Seller
does hereby consent to the filing by the Purchaser of financing statements
relating to the transactions contemplated hereby without the signature of the
Seller.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and sent by
facsimile or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either
party, at such other address as shall be designated by such party in a notice
hereunder to the other party. Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly given when
transmitted by facsimile or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates
of officers of the Seller submitted pursuant hereto, shall remain operative
and in full force and effect and shall survive delivery of the Mortgage Loans
by the Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant
of this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction,
be ineffective to the
16
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable
law, the parties hereto waive any provision of law that prohibits or renders
void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation,
expert witness fees). As used herein, the term "prevailing party" shall mean
the party that obtains the principal relief it has sought, whether by
compromise settlement or judgment. If the party that commenced or instituted
the action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the
prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the Purchaser, except that any person into which
the Seller may be merged or consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and
the assignee shall, to the extent of such assignment, succeed to the rights
and obligations hereunder of the Purchaser. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Seller, the Purchaser, the Underwriters (as intended third party beneficiaries
hereof), the Initial Purchasers (also as intended third party beneficiaries
hereof) and their permitted successors and assigns. This Agreement is
enforceable by the Underwriters, the Initial Purchasers and the other third
party beneficiaries hereto in all respects to the same extent as if they had
been signatories hereof.
17
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party hereto against whom such
waiver or modification is sought to be enforced. The Seller's obligations
hereunder shall in no way be expanded, changed or otherwise affected by any
amendment of or modification to the Pooling and Servicing Agreement,
including, without limitation, any defined terms therein, unless the Seller
has consented to such amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with Ernst & Young LLP and PriceWaterhouseCoopers LLP in making available all
information and taking all steps reasonably necessary to permit such
accountants to deliver the letters required by the Underwriting Agreement and
the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement (including, without limitation, Schedule I
hereto) is made with respect to a Person's "knowledge," such statement refers
to such Person's employees or agents who were or are responsible for or
involved with the indicated matter and have actual knowledge of the matter in
question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of reference,
the Mortgaged Property that relates or corresponds to any of the Mortgage
Loans in a Crossed Loan Group shall be the property identified in the Mortgage
Loan Schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Schedule I hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a
manner consistent with this Section 20. In addition, if there exists with
respect to any Crossed Loan Group only one original of any document referred
to in the definition of "Mortgage File" in this Agreement and covering all the
Mortgage Loans in such Crossed Loan Group, the inclusion of the original of
such document in the Mortgage File for any of the Mortgage Loans in such
Crossed Loan Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
SELLER
COUNTRYWIDE COMMERCIAL REAL
ESTATE FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Address for Notices:
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
XXXXXXX XXXXX MORTGAGE INVESTORS,
INC.
By: /s/ Xxxxxx X. Xxx
-----------------------------------
Name: Xxxxxx X. Xxx
Title: Vice President
Address for Notices:
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Countrywide Mortgage Loan Purchase Agreement
SCHEDULE I
Mortgage Loan Representations and Warranties
For purposes of this Schedule I, the "Value" of a Mortgaged Property
shall mean the value of such Mortgaged Property as determined by the appraisal
(and subject to the assumptions set forth in the appraisal) performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and correct in all
material respects (and contains all the items listed in the definition of
"Mortgage Loan Schedule") as of the dates of the information set forth therein
or, if not set forth therein, and in all events no earlier than, as of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to, and was the
sole owner of, each Mortgage Loan. The Seller has full right, power and
authority to transfer and assign each Mortgage Loan to or at the direction of
the Purchaser free and clear of any and all pledges, liens, charges, security
interests, participation interests and/or other interests and encumbrances
(except for certain servicing rights as provided in the Pooling and Servicing
Agreement, any permitted subservicing agreements and servicing rights purchase
agreements pertaining thereto). The Seller has validly and effectively
conveyed to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan free and clear of any pledge, lien, charge, security interest or
other encumbrance (except for certain servicing rights as provided in the
Pooling and Servicing Agreement, any permitted subservicing agreements and
servicing rights purchase agreements pertaining thereto); provided that
recording and/or filing of various transfer documents are to be completed
after the Closing Date as contemplated hereby and by the Pooling and Servicing
Agreement. The sale of the Mortgage Loans to the Purchaser or its designee
does not require the Seller to obtain any governmental or regulatory approval
or consent that has not been obtained. Each Mortgage Note is, or shall be as
of the Closing Date, properly endorsed to the Purchaser or its designee and
each such endorsement is, or shall be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due Date for
such Mortgage Loan in June 2005 without giving effect to any applicable grace
period, nor was any such payment 30 days or more delinquent in the
twelve-month period immediately preceding the Due Date for such Mortgage Loan
in June 2005, without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered in
connection with each Mortgage Loan constitutes a valid and, subject to the
limitations and exceptions set forth in representation 13 below, enforceable
first priority lien upon the related Mortgaged Property, prior to all other
liens and encumbrances, and there are no liens and/or encumbrances that are
pari passu with the lien of such Mortgage, in any event subject, however, to
the following (collectively, the "Permitted Encumbrances"): (a) the lien for
current real estate taxes, ground rents, water charges, sewer rents and
assessments not yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions, rights of
way, easements and other matters that are of public record and/or are referred
to in the related lender's title insurance policy (or, if not yet issued,
referred to in a pro forma title policy or a "marked-up" commitment binding
upon the title insurer); (c) exceptions and exclusions specifically referred
to in such lender's title insurance policy (or, if not yet issued, referred to
in a pro forma title policy or "marked-up" commitment binding upon the title
insurer); (d) other matters to which like properties are commonly subject; (e)
the rights of tenants (as tenants only) under leases (including subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g) if the
related Mortgaged Property consists of one or more units in a condominium, the
related condominium declaration. The Permitted Encumbrances do not,
individually or in the aggregate, materially interfere with the security
intended to be provided by the related Mortgage, the current principal use of
the related Mortgaged Property, the Value of the Mortgaged Property or the
current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan. The related assignment of such
Mortgage executed and delivered in favor of the Trustee is in recordable form
(but for insertion of the name and address of the assignee and any related
recording information which is not yet available to the Seller) and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of
such Mortgage from the relevant assignor to the Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a separate
instrument or as part of the Mortgage) that relates to and was delivered in
connection with each Mortgage Loan and that establishes and creates a valid,
subsisting and, subject to the limitations and exceptions set forth in
representation 13 below, enforceable first priority lien on and security
interest in, subject to applicable law, the property, rights and interests of
the related Mortgagor described therein, except for Permitted Encumbrances and
except that a license may have been granted to the related Mortgagor to
exercise certain rights and perform certain obligations of the lessor under
the relevant lease or leases, including, without limitation, the right to
operate the related leased property so long as no event of default has
occurred under such Mortgage Loan; and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of Leases
not included in a Mortgage, executed and delivered in favor of the Trustee is
in recordable form (but for insertion of the name of the assignee and any
related recording information which is not yet available to the Seller), and
constitutes a legal, valid, binding and, subject to the limitations and
exceptions set forth in representation 13 below, enforceable assignment of
such Assignment of Leases from the relevant assignor to the Trustee. The
related Mortgage or related Assignment of Leases, subject to applicable law,
provides for the appointment of a receiver for the collection of rents or for
the related mortgagee to enter into possession to collect the rents or
provides for rents to be paid directly to the related mortgagee, if there is
an event of default. No person other than the related Mortgagor owns any
interest in any payments due under the related leases on which the Mortgagor
is the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been delivered to the
Purchaser or its designee as a part of the related Mortgage File, (a) the
related Mortgage (including any
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amendments or supplements thereto included in the related Mortgage File) has
not been impaired, waived, modified, altered, satisfied, canceled,
subordinated or rescinded, (b) neither the related Mortgaged Property nor any
material portion thereof has been released from the lien of such Mortgage and
(c) the related Mortgagor has not been released from its obligations under
such Mortgage, in whole or in material part. With respect to each Mortgage
Loan, since the later of (a) May 31, 2005 and (b) the closing date of such
Mortgage Loan, the Seller has not executed any written instrument that (i)
impaired, satisfied, canceled, subordinated or rescinded such Mortgage Loan,
(ii) waived, modified or altered any material term of such Mortgage Loan,
(iii) released the Mortgaged Property or any material portion thereof from the
lien of the related Mortgage, or (iv) released the related Mortgagor from its
obligations under such Mortgage Loan in whole or material part. For avoidance
of doubt, the preceding sentence does not relate to any release of escrows by
the Seller or a servicer on its behalf.
7. Condition of Property; Condemnation. In the case of each Mortgage
Loan, except as set forth in an engineering report prepared by an independent
engineering consultant in connection with the origination of such Mortgage
Loan, the related Mortgaged Property is, to the Seller's knowledge, in good
repair and free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan (except in any such case
where an escrow of funds, letter of credit or insurance coverage exists
sufficient to effect the necessary repairs and maintenance). As of the date of
origination of the Mortgage Loan, there was no proceeding pending for the
condemnation of all or any material part of the related Mortgaged Property. As
of the Closing Date, the Seller has not received notice and has no knowledge
of any proceeding pending for the condemnation of all or any material portion
of the Mortgaged Property securing any Mortgage Loan. As of the date of
origination of each Mortgage Loan and, to the Seller's knowledge, as of the
date hereof, (a) none of the material improvements on the related Mortgaged
Property encroach upon the boundaries and, to the extent in effect at the time
of construction, do not encroach upon the building restriction lines of such
property, and none of the material improvements on the related Mortgaged
Property encroached over any easements, except, in each case, for
encroachments that are insured against by the lender's title insurance policy
referred to in representation 8 below or that do not materially and adversely
affect the Value or current use of such Mortgaged Property and (b) no
improvements on adjoining properties encroached upon such Mortgaged Property
so as to materially and adversely affect the Value of such Mortgaged Property,
except those encroachments that are insured against by the lender's title
insurance policy referred to in representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage Loan
is covered by an American Land Title Association (or an equivalent form of)
lender's title insurance policy (the "Title Policy") (or, if such policy has
yet to be issued, by a pro forma policy or a "marked up" commitment binding on
the title insurer) in the original principal amount of such Mortgage Loan
after all advances of principal, insuring that the related Mortgage is a valid
first priority lien on such Mortgaged Property, subject only to the Permitted
Encumbrances, except that in the case of a Mortgage Loan as to which the
related Mortgaged Property is made up of more than one parcel of property,
each of which is secured by a separate Mortgage, such Mortgage (and therefore
the related Title Policy) may be in an amount less than the original principal
amount of the Mortgage Loan, but is not less than the allocated amount of
subject parcel constituting a portion of the related Mortgaged Property. Such
Title Policy (or, if
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it has yet to be issued, the coverage to be provided thereby) is in full force
and effect, all premiums thereon have been paid, no material claims have been
made thereunder and no claims have been paid thereunder. No holder of the
related Mortgage has done, by act or omission, anything that would materially
impair the coverage under such Title Policy. Immediately following the
transfer and assignment of the related Mortgage Loan to the Trustee, such
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) inures to the benefit of the Trustee as sole insured without the
consent of or notice to the insurer. Such Title Policy contains no exclusion
for whether, or it affirmatively insures (unless the related Mortgaged
Property is located in a jurisdiction where such affirmative insurance is not
available) that, (a) the related Mortgaged Property has access to a public
road, and (b) the area shown on the survey, if any, reviewed or prepared in
connection with the origination of the related Mortgage Loan is the same as
the property legally described in the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan
has been disbursed but a portion thereof is being held in escrow or reserve
accounts documented as part of the Mortgage Loan documents and the rights to
which are transferred to the Trustee, pending the satisfaction of certain
conditions relating to leasing, repairs or other matters with respect to the
related Mortgaged Property), and there is no obligation for future advances
with respect thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage Loan, together with applicable state law, contain customary and,
subject to the limitations and exceptions set forth in representation 13
below, enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the related
Mortgaged Property of the principal benefits of the security intended to be
provided thereby, including, without limitation, foreclosure or similar
proceedings (as applicable for the jurisdiction where the related Mortgaged
Property is located). None of the Mortgage Loan documents contains any
provision that expressly excuses the related Mortgagor from obtaining and
maintaining insurance coverage for acts of terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan is a deed of trust, then (a) a trustee, duly qualified under applicable
law to serve as such, has either been properly designated and currently so
serves or may be substituted in accordance with the Mortgage and applicable
law, and (b) no fees or expenses are payable to such trustee by the Seller,
the Purchaser or any transferee thereof except in connection with a trustee's
sale after default by the related Mortgagor or in connection with any full or
partial release of the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the only
environmental investigation conducted in connection with the origination of
the related Mortgage Loan related to asbestos-containing materials and
lead-based paint), (a) an environmental site assessment meeting ASTM standards
and covering all environmental hazards typically assessed for similar
properties including use, type and tenants of the related Mortgaged Property,
a transaction screen meeting ASTM standards or an update of a previously
conducted environmental site assessment (which update may have been performed
pursuant to a database update), was performed by an independent third-party
environmental consultant (licensed to the extent required by applicable
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state law) with respect to each Mortgaged Property securing a Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the report of each
such assessment, update or screen, if any (an "Environmental Report"), is
dated no earlier than (or, alternatively, has been updated within) twelve (12)
months prior to the date hereof, (c) a copy of each such Environmental Report
has been delivered to the Purchaser, and (d) either: (i) no such Environmental
Report, if any, reveals that as of the date of the report there is a material
violation of applicable environmental laws with respect to any known
circumstances or conditions relating to the related Mortgaged Property; or
(ii) if any such Environmental Report does reveal any such circumstances or
conditions with respect to the related Mortgaged Property and the same have
not been subsequently remediated in all material respects, then one or more of
the following are true--(A) one or more parties not related to the related
Mortgagor and collectively having financial resources reasonably estimated to
be adequate to cure the violation was identified as the responsible party or
parties for such conditions or circumstances, and such conditions or
circumstances do not materially impair the Value of the related Mortgaged
Property, (B) the related Mortgagor was required to provide additional
security reasonably estimated to be adequate to cure the violations and/or to
obtain and, for the period contemplated by the related Mortgage Loan
documents, maintain an operations and maintenance plan, (C) the related
Mortgagor, or other responsible party, provided a "no further action" letter
or other evidence that would be acceptable to a reasonably prudent commercial
mortgage lender, that applicable federal, state or local governmental
authorities had no current intention of taking any action, and are not
requiring any action, in respect of such conditions or circumstances, (D) such
conditions or circumstances were investigated further and based upon such
additional investigation, a qualified environmental consultant recommended no
further investigation or remediation, (E) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not greater than 2% of
the outstanding principal balance of the related Mortgage Loan, (F) there
exists an escrow of funds reasonably estimated to be sufficient for purposes
of effecting such remediation, (G) the related Mortgaged Property is insured
under a policy of insurance, subject to certain per occurrence and aggregate
limits and a deductible, against certain losses arising from such
circumstances and conditions or (H) a responsible party provided a guaranty or
indemnity to the related Mortgagor to cover the costs of any required
investigation, testing, monitoring or remediation and, as of the date of
origination of the related Mortgage Loan, such responsible party had financial
resources reasonably estimated to be adequate to cure the subject violation in
all material respects. To the Seller's actual knowledge and without inquiry
beyond the related Environmental Report, there are no significant or material
circumstances or conditions with respect to such Mortgaged Property not
revealed in any such Environmental Report, where obtained, or in any Mortgagor
questionnaire delivered to the Seller in connection with the issue of any
related environmental insurance policy, if applicable, that would require
investigation or remediation by the related Mortgagor under, or otherwise be a
material violation of, any applicable environmental law. The Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to comply in
all material respects with all applicable federal, state and local
environmental laws and regulations. Each of the Mortgage Loans identified on
Annex C hereto is covered by a secured creditor impaired property
environmental insurance policy and each such policy is noncancellable during
its term, is in the amount at least equal to 125% of the principal balance of
the Mortgage Loan, has a term ending no sooner than the date which is five
years after the maturity date of the Mortgage Loan to which it relates and
either does not provide for a deductible or the deductible amount is held in
escrow and all premiums have been paid in
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full. Each Mortgagor represents and warrants in the related Mortgage Loan
documents that except as set forth in certain environmental reports and to its
knowledge it has not used, caused or permitted to exist and will not use,
cause or permit to exist on the related Mortgaged Property any hazardous
materials in any manner which violates federal, state or local laws,
ordinances, regulations, orders, directives or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of hazardous materials. The related Mortgagor (or
affiliate thereof) has agreed to indemnify, defend and hold the Seller and its
successors and assigns harmless from and against any and all losses,
liabilities, damages, injuries, penalties, fines, out-of-pocket expenses and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by or asserted against, any such party resulting from a
breach of environmental representations, warranties or covenants given by the
Mortgagor in connection with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other agreement executed by or on behalf of the related Mortgagor with respect
to each Mortgage Loan is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, fraudulent transfer and conveyance or other
similar laws affecting the enforcement of creditors' rights generally, (ii)
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and (iii) public policy
considerations underlying applicable securities laws, to the extent that such
public policy considerations limit the enforceability of provisions that
purport to provide indemnification from liabilities under applicable
securities laws, and except that certain provisions in such loan documents may
be further limited or rendered unenforceable by applicable law, but (subject
to the limitations set forth in the foregoing clauses (i) and (ii)) such
limitations or unenforceability will not render such loan documents invalid as
a whole or substantially interfere with the mortgagee's realization of the
principal benefits and/or security provided thereby. There is no valid
defense, counterclaim or right of offset or rescission available to the
related Mortgagor with respect to such Mortgage Note, Mortgage or other
agreements that would deny the mortgagee the principal benefits intended to be
provided thereby, except in each case, with respect to the enforceability of
any provisions requiring the payment of default interest, late fees,
additional interest, prepayment premiums or yield maintenance charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating (and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and obligated to
maintain the insurance described in this paragraph, are allowed to self-insure
the related Mortgaged Properties, all improvements upon each Mortgaged
Property securing a Mortgage Loan are insured under a fire and extended perils
insurance (or the equivalent) policy, in an amount at least equal to the
lesser of the outstanding principal balance of such Mortgage Loan and 100% of
the full insurable replacement cost of the improvements located on the related
Mortgaged Property, and if applicable, the related hazard insurance policy
contains appropriate endorsements to avoid the application of co-insurance and
does not permit reduction in insurance proceeds for depreciation. Each
Mortgaged Property is also covered by comprehensive general liability
insurance in amounts customarily required by prudent commercial mortgage
lenders for properties of similar types. Each Mortgaged Property securing
I-6
a Mortgage Loan is the subject of a business interruption or rent loss
insurance policy providing coverage for at least twelve (12) months (or a
specified dollar amount which is reasonably estimated to cover no less than
twelve (12) months of rental income), unless such Mortgaged Property
constitutes a manufactured housing community. If any portion of the
improvements on a Mortgaged Property securing any Mortgage Loan was, at the
time of the origination of such Mortgage Loan, in an area identified in the
Federal Register by the Flood Emergency Management Agency as a special flood
hazard area (Zone A or Zone V), and flood insurance was available, a flood
insurance policy is in effect with a generally acceptable insurance carrier,
in an amount representing coverage not less than the least of: (1) the full
insurable value of the related Mortgaged Property or (2) the maximum amount of
insurance available. Each Mortgaged Property located in California or in
seismic zones 3 and 4 is covered by seismic insurance to the extent such
Mortgaged Property has a probable maximum loss of greater than twenty percent
(20%) of the replacement value of the related improvements, calculated using
methodology acceptable to a reasonably prudent commercial mortgage lender with
respect to similar properties in the same area or earthquake zone. Each
Mortgaged Property located within Florida or within 25 miles of the coast of
North Carolina, South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas is insured by windstorm insurance in an amount at least equal to the
lesser of (i) the outstanding principal balance of the related Mortgage Loan
and (ii) 100% of the insurable replacement cost of the improvements located on
such Mortgaged Property (less physical depreciation). All such hazard and
flood insurance policies contain a standard mortgagee clause for the benefit
of the holder of the related Mortgage, its successors and assigns, as
mortgagee, and are not terminable (nor may the amount of coverage provided
thereunder be reduced) without at least ten (10) days' prior written notice to
the mortgagee; and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Additionally, for any
Mortgage Loan having a Cut-off Date Balance equal to or greater than
$20,000,000, the insurer for all of the required coverages set forth herein
has a claims paying ability or financial strength rating from S&P or Xxxxx'x
of not less than A-minus (or the equivalent), or from A.M. Best Company of not
less than "A-minus: V" (or the equivalent) and, if rated by Fitch, of not less
than "A-" from Fitch (or the equivalent). With respect to each Mortgage Loan,
the related Mortgage Loan documents require that the related Mortgagor or a
tenant of such Mortgagor maintain insurance as described above or permit the
related mortgagee to require insurance as described above. Except under
circumstances that would be reasonably acceptable to a prudent commercial
mortgage lender or that would not otherwise materially and adversely affect
the security intended to be provided by the related Mortgage, the Mortgage
Loan documents for each Mortgage Loan provide that proceeds paid under any
such casualty insurance policy will (or, at the lender's option, will) be
applied either to the repair or restoration of all or part of the related
Mortgaged Property or to the payment of amounts due under such Mortgage Loan;
provided that the related Mortgage Loan documents may entitle the related
Mortgagor to any portion of such proceeds remaining after the repair or
restoration of the related Mortgaged Property or payment of amounts due under
the Mortgage Loan; and provided, further, that, if the related Mortgagor holds
a leasehold interest in the related Mortgaged Property, the application of
such proceeds will be subject to the terms of the related Ground Lease (as
defined in representation 18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance policy that does not contain an express exclusion for (or,
alternatively, is covered by a separate policy that insures against property
damage resulting from) acts of terrorism.
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15. Taxes and Assessments. There are no delinquent property taxes or
assessments or other outstanding charges affecting any Mortgaged Property
securing a Mortgage Loan that are a lien of priority equal to or higher than
the lien of the related Mortgage and that have not been paid or are not
otherwise covered by an escrow of funds sufficient to pay such charge. For
purposes of this representation and warranty, real property taxes and
assessments and other charges shall not be considered delinquent until the
date on which interest and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning consultant's
report or an endorsement to the related Title Policy, or based on such other
due diligence considered reasonable by prudent commercial mortgage lenders in
the lending area where the subject Mortgaged Property is located (including,
without limitation, when commercially reasonable, a representation of the
related Mortgagor at the time of origination of the subject Mortgage Loan),
the improvements located on or forming part of each Mortgaged Property
securing a Mortgage Loan are in material compliance with applicable zoning
laws and ordinances or constitute a legal non-conforming use or structure (or,
if any such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure does not
materially and adversely affect the Value of the related Mortgaged Property).
In the case of each legal non-conforming use or structure, the related
Mortgaged Property may be restored or repaired to the full extent of the use
or structure at the time of such casualty or law and ordinance coverage has
been obtained in an amount that would be required by prudent commercial
mortgage lenders (or, if the related Mortgaged Property may not be restored or
repaired to the full extent of the use or structure at the time of such
casualty and law and ordinance coverage has not been obtained in an amount
that would be required by prudent commercial mortgage lenders, such fact does
not materially and adversely affect the Value of the related Mortgaged
Property).
18. Leasehold Estate Only. If any Mortgage Loan is secured by the
interest of a Mortgagor as a lessee under a ground lease of all or a material
portion of a Mortgaged Property (together with any and all written amendments
and modifications thereof and any and all estoppels from or other agreements
with the ground lessor, a "Ground Lease"), but not by the related fee interest
in such Mortgaged Property or such material portion thereof (the "Fee
Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage; and there has been
no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in written
instruments which are a part of the related Mortgage File; and if
required by such Ground Lease, the lessor thereunder has received notice
of the lien of the related Mortgage in accordance with the provisions of
such Ground Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not subject to
any liens or
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encumbrances superior to, or of equal priority with, the related
Mortgage, other than the related Fee Interest and Permitted Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is thereafter further assignable by, the Purchaser
upon notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained); provided that such
Ground Lease has not been terminated and all amounts owed thereunder have
been paid;
(iv) such Ground Lease is in full force and effect, and, to the
Seller's knowledge, no material default has occurred under such Ground
Lease;
(v) such Ground Lease requires the lessor thereunder to give notice
of any default by the lessee to the mortgagee under such Mortgage Loan;
and such Ground Lease further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee under
such Mortgage Loan unless a copy has been delivered to such mortgagee in
the manner described in such Ground Lease;
(vi) the mortgagee under such Mortgage Loan is permitted a
reasonable opportunity (including, where necessary, sufficient time to
gain possession of the interest of the lessee under such Ground Lease) to
cure any default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
(vii) such Ground Lease either (i) has an original term which
extends not less than twenty (20) years beyond the Stated Maturity Date
of such Mortgage Loan, or (ii) has an original term which does not end
prior to the 5th anniversary of the Stated Maturity Date of such Mortgage
Loan and has extension options that are exercisable by the lender upon
its taking possession of the Mortgagor's leasehold interest and that, if
exercised, would cause the term of such Ground Lease to extend not less
than twenty (20) years beyond the Stated Maturity Date of such Mortgage
Loan;
(viii) such Ground Lease requires the lessor to enter into a new
lease with a mortgagee upon termination of such Ground Lease for any
reason, including as a result of a rejection of such Ground Lease in a
bankruptcy proceeding involving the related Mortgagor, unless the
mortgagee under such Mortgage Loan fails to cure a default of the lessee
that is susceptible to cure by the mortgagee under such Ground Lease
following notice thereof from the lessor;
(ix) under the terms of such Ground Lease and the related Mortgage
or related Mortgage Loan documents, taken together, any related casualty
insurance proceeds (other than de minimis amounts for minor casualties)
with respect to the leasehold interest will be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property,
with the mortgagee or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to hold
and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or
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(ii) to the payment of the outstanding principal balance of the Mortgage
Loan together with any accrued interest thereon;
(x) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender in the lending area where the related
Mortgaged Property is located at the time of the origination of such
Mortgage Loan; and
(xi) such Ground Lease provides that (i) it may not be amended or
modified without the prior written consent of the mortgagee under such
Mortgage Loan, and (ii) any such action without such consent is not
binding on such mortgagee, its successors or assigns.
19. Qualified Mortgage. Each Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury Regulations
Section 1.860G-2(a) (but without regard to the rule in Treasury Regulations
Section 1.860G-2(a)(3) or Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage under certain circumstances). Each Mortgage
Loan is directly secured by an interest in real property (within the meaning
of Treasury Regulations Section 1.856-3(c) and 1.856-3(d)), and either (1) the
fair market value of the interest in real property which secures such Mortgage
Loan was at least equal to 80% of the principal amount of such Mortgage Loan
at the time the Mortgage Loan was (a) originated or modified (within the
meaning of Treasury Regulations Section 1.860G-2(b)(1)) or (b) contributed to
the Trust Fund, or (2) substantially all of the proceeds of such Mortgage Loan
were used to acquire, improve or protect an interest in real property and such
interest in real property was the only security for the Mortgage Loan at the
time such Mortgage Loan was originated or modified. For purposes of the
previous sentence, the fair market value of the referenced interest in real
property shall first be reduced by (1) the amount of any lien on such interest
in real property that is senior to the Mortgage Loan, and (2) a proportionate
amount of any lien on such interest in real property that is in parity with
the Mortgage Loan.
20. Advancement of Funds. In the case of each Mortgage Loan, neither
the Seller nor, to the Seller's knowledge, any prior holder of such Mortgage
Loan has advanced funds or induced, solicited or knowingly received any
advance of funds from a party other than the owner of the related Mortgaged
Property (other than amounts paid by the tenant as specifically provided under
a related lease or by the property manager), for the payment of any amount
required by such Mortgage Loan, except for interest accruing from the date of
origination of such Mortgage Loan or the date of disbursement of the Mortgage
Loan proceeds, whichever is later, to the date which preceded by 30 days the
first due date under the related Mortgage Note.
21. No Equity Interest, Equity Participation or Contingent Interest.
No Mortgage Loan contains any equity participation by the mortgagee
thereunder, is convertible by its terms into an equity ownership interest in
the related Mortgaged Property or the related Mortgagor, provides for any
contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or provides for the negative
amortization of interest, except that, in the case of an ARD Loan, such
Mortgage Loan provides that, during the period commencing on or about the
related Anticipated Repayment Date and continuing until
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such Mortgage Loan is paid in full, (a) additional interest shall accrue and
may be compounded monthly and shall be payable only after the outstanding
principal of such Mortgage Loan is paid in full, and (b) a portion of the cash
flow generated by such Mortgaged Property will be applied each month to pay
down the principal balance thereof in addition to the principal portion of the
related monthly payment.
22. Legal Proceedings. To the Seller's knowledge, there are no
pending actions, suits, proceedings or governmental investigations by or
before any court or governmental authority against or affecting the Mortgagor
under any Mortgage Loan or the related Mortgaged Property that, if determined
adversely to such Mortgagor or Mortgaged Property, would materially and
adversely affect the value of the Mortgaged Property as security for such
Mortgage Loan or the current ability of the Mortgagor to pay principal,
interest or any other amounts due under such Mortgage Loan.
23. Other Mortgage Liens. None of the Mortgage Loans permits the
related Mortgaged Property to be encumbered by any mortgage lien junior to or
of equal priority with the lien of the related Mortgage without the prior
written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. To the Seller's knowledge,
except for cases involving other Mortgage Loans, none of the Mortgaged
Properties securing the Mortgage Loans is encumbered by any mortgage liens
junior to or of equal priority with the liens of the related Mortgage. The
related Mortgage Loan documents require the Mortgagor under each Mortgage Loan
to pay all reasonable costs and expenses related to any required consent to an
encumbrance, including any applicable Rating Agency fees, or would permit the
related mortgagee to withhold such consent if such costs and expenses are not
paid by a party other than such mortgagee.
24. No Mechanics' Liens. As of the date of origination, each
Mortgaged Property securing a Mortgage Loan (exclusive of any related personal
property) was free and clear of any and all mechanics' and materialmen's liens
that were prior or equal to the lien of the related Mortgage and that were not
bonded or escrowed for or covered by title insurance. As of the Closing Date,
to the Seller's knowledge: (i) each Mortgaged Property securing a Mortgage
Loan (exclusive of any related personal property) is free and clear of any and
all mechanics' and materialmen's liens that are prior or equal to the lien of
the related Mortgage and that are not bonded or escrowed for or covered by
title insurance, and (ii) no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage and that is not bonded or escrowed for or covered by title insurance.
25. Compliance. Each Mortgage Loan complied with, or was exempt
from, all applicable usury laws in effect at its date of origination.
26. Licenses and Permits. To the Seller's knowledge, as of the date
of origination of each Mortgage Loan and based on any of: (i) a letter from
governmental authorities, (ii) a legal opinion, (iii) an endorsement to the
related Title Policy, (iv) a representation of the related Mortgagor at the
time of origination of such Mortgage Loan, (v) a zoning report from a zoning
consultant, or (vi) other due diligence that a commercially reasonable
originator of similar mortgage loans in the jurisdiction where the related
Mortgaged Property is located customarily performs in the origination of
comparable mortgage loans, the
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related Mortgagor was in possession of all material licenses, permits and
franchises required by applicable law for the ownership and operation of the
related Mortgaged Property as it was then operated or such material licenses,
permits and franchises have otherwise been issued.
27. Cross-Collateralization. No Mortgage Loan is
cross-collateralized with any loan which is outside the Mortgage Pool. With
respect to any group of cross-collateralized Mortgage Loans, the sum of the
amounts of the respective Mortgages recorded on the related Mortgaged
Properties with respect to such Mortgage Loans is at least equal to the total
amount of such Mortgage Loans.
28. Releases of Mortgaged Properties. No Mortgage Note or Mortgage
requires the mortgagee to release all or any material portion of the related
Mortgaged Property from the lien of the related Mortgage except upon (i)
payment in full of all amounts due under the related Mortgage Loan or (ii)
delivery of "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
in connection with a defeasance of the related Mortgage Loan; provided that
the Mortgage Loans that are Crossed Loans, and the other individual Mortgage
Loans secured by multiple parcels, may require the respective mortgagee(s) to
grant releases of portions of the related Mortgaged Property or the release of
one or more related Mortgaged Properties upon (i) the satisfaction of certain
legal and underwriting requirements or (ii) the payment of a release price in
connection therewith; and provided, further, that certain Crossed Groups or
individual Mortgage Loans secured by multiple parcels may permit the related
Mortgagor to obtain the release of one or more of the related Mortgaged
Properties by substituting comparable real estate property, subject to, among
other conditions precedent, receipt of confirmation from each Rating Agency
that such release and substitution will not result in a qualification,
downgrade or withdrawal of any of its then-current ratings of the
Certificates; and provided, further, that any Mortgage Loan may permit the
unconditional release of one or more unimproved parcels of land to which the
Seller did not give any material value in underwriting the Mortgage Loan.
29. Defeasance. Each Mortgage Loan that contains a provision for any
defeasance of mortgage collateral permits defeasance (i) no earlier than two
years following the Closing Date and (ii) only with substitute collateral
constituting "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act. To the Seller's knowledge, the provisions of each
such Mortgage Loan, if any, permitting defeasance are only for the purpose of
facilitating the disposition of a Mortgaged Property and are not part of an
arrangement to collateralize a REMIC offering with obligations that are not
real estate mortgages.
30. Defeasance and Assumption Costs. If any Mortgage Loan permits
defeasance, then the related Mortgage Loan documents provide that the related
Mortgagor is responsible for the payment of all reasonable costs and expenses
associated with defeasance incurred by the related mortgagee, including Rating
Agency fees. If any Mortgage Loan permits assumptions, then the related
Mortgage Loan documents provide that the related Mortgagor is responsible for
all reasonable costs and expenses associated with an assumption incurred by
the related mortgagee.
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31. Fixed Rate Loans. Each Mortgage Loan bears interest at a rate
that remains fixed throughout the remaining term of such Mortgage Loan, except
in the case of an ARD Loan after its Anticipated Repayment Date and except for
the imposition of a default rate.
32. Inspection. The Seller or an affiliate thereof inspected, or
caused the inspection of, the related Mortgaged Property within the preceding
twelve (12) months.
33. No Material Default. To the Seller's knowledge, there exists no
material default, breach, violation or event of acceleration under the
Mortgage Note or Mortgage for any Mortgage Loan (other than payments due but
not yet 30 days or more delinquent); provided, however, that this
representation and warranty does not cover any default, breach, violation or
event of acceleration that pertains to or arises out of the subject matter
otherwise covered by any other representation and warranty made by the Seller
in this Schedule I.
34. Due-on-Sale. The Mortgage, Mortgage Note or loan agreement for
each Mortgage Loan contains a "due-on-sale" clause, which provides for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the prior written consent of the holder of such Mortgage,
either the related Mortgaged Property, or any direct controlling equity
interest in the related Mortgagor, is transferred or sold, other than by
reason of family and estate planning transfers, transfers by devise or descent
or by operation of law upon death, transfers of less than a controlling
interest in the Mortgagor, transfers of shares in public companies, issuance
of non-controlling new equity interests, transfers to an affiliate meeting the
requirements of the Mortgage Loan, transfers among existing members, partners
or shareholders in the Mortgagor, transfers among affiliated Mortgagors with
respect to cross-collateralized Mortgage Loans or multi-property Mortgage
Loans, transfers among co-Mortgagors, transfers of worn-out or obsolete
furniture, furnishings and equipment or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan.
35. Single Purpose Entity. The Mortgagor on each Mortgage Loan with
a Cut-off Date Balance of $5,000,000 or more, was, as of the origination of
the Mortgage Loan, a Single Purpose Entity. For this purpose, a "Single
Purpose Entity" shall mean an entity, other than an individual, whose
organizational documents provide substantially to the effect that it was
formed or organized solely for the purpose of owning and operating one or more
of the Mortgaged Properties securing the Mortgage Loans and prohibit it from
engaging in any business unrelated to such Mortgaged Property or Properties,
and whose organizational documents further provide, or which entity
represented in the related Mortgage Loan documents, substantially to the
effect that it does not have any material assets other than those related to
its interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person, that it holds itself out as
a legal entity (separate and apart from any other person), that it will not
guarantee or assume the debts of any other person, that it will not commingle
assets with affiliates, and that it will not transact business with affiliates
(except to the extent required by any cash management provisions of the
related Mortgage Loan documents) except on an arm's-length basis.
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36. Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest in a mortgage loan.
37. Tax Parcels. Each Mortgaged Property constitutes one or more
complete separate tax lots or is subject to an endorsement under the related
Title Policy insuring same, or in certain instances an application has been
made to the applicable governing authority for creation of separate tax lots,
which shall be effective for the next tax year.
38. ARD Loans. Each ARD Loan requires scheduled monthly payments of
principal. If any ARD Loan is not paid in full by its Anticipated Repayment
Date, and assuming it is not otherwise in default, (i) the rate at which such
ARD Loan accrues interest will increase by at least two (2) percentage points
and (ii) the related Mortgagor is required to enter into a lockbox arrangement
on the ARD Loan whereby all revenue from the related Mortgaged Property shall
be deposited directly into a designated account controlled by the applicable
servicer.
39. Security Interests. A UCC financing statement has been filed
and/or recorded, or submitted for filing and/or recording (or submitted to a
title company pursuant to escrow instructions), in all places necessary to
perfect (to the extent that the filing of such a UCC financing statement can
perfect such a security interest) a valid security interest in the personal
property of the related Mortgagor granted under the related Mortgage. If any
Mortgaged Property securing a Mortgage Loan is operated as a hospitality
property, then (a) the security agreements, financing statements or other
instruments, if any, related to the Mortgage Loan secured by such Mortgaged
Property establish and create a valid security interest in all items of
personal property owned by the related Mortgagor which are material to the
conduct in the ordinary course of the Mortgagor's business on the related
Mortgaged Property, subject only to purchase money security interests,
personal property leases and security interests to secure revolving lines of
credit and similar financing; and (b) one or more UCC financing statements
covering such personal property have been filed or recorded (or have been sent
for filing or recording or submitted to a title company pursuant to escrow
instructions) wherever necessary to perfect under applicable law such security
interests (to the extent a security interest in such personal property can be
perfected by the filing of a UCC financing statement under applicable law).
The related assignment of such security interest (but for insertion of the
name of the assignee and any related information which is not yet available to
the Seller) executed and delivered in favor of the Trustee constitutes a
legal, valid and, subject to the limitations and exceptions set forth in
representation 13 hereof, binding assignment thereof from the relevant
assignor to the Trustee. Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in rents
or other personal property to the extent that possession or control of such
items or actions other than the filing of UCC Financing Statements are
required in order to effect such perfection.
40. Prepayment Premiums and Yield Maintenance Charges. Prepayment
Premiums and Yield Maintenance Charges payable with respect to each Mortgage
Loan, if any, constitute "customary prepayment penalties" within meaning of
Treasury Regulations Section 1.860G-1(b)(2).
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41. Commencement of Amortization. Except as disclosed in the
Prospectus Supplement, each Mortgage Loan begins to amortize prior to its
Stated Maturity Date or, in the case of an ARD Loan, prior to its Anticipated
Repayment Date. 42. Servicing Rights. Except as provided in the Pooling and
Servicing Agreement, any permitted subservicing agreements and servicing
rights purchase agreements pertaining thereto, no Person has been granted or
conveyed the right to service any Mortgage Loan or receive any consideration
in connection therewith which will remain in effect after the Closing Date.
43. Recourse. The related Mortgage Loan documents contain provisions providing
for recourse against the related Mortgagor, a principal of such Mortgagor or
an entity controlled by a principal of such Mortgagor, for damages,
liabilities, expenses or claims sustained in connection with the Mortgagor's
fraud, material (or, alternatively, intentional) misrepresentation, waste or
misappropriation of any tenant security deposits (in some cases, only after
foreclosure or an action in respect thereof), rent (in some cases, only after
an event of default), insurance proceeds or condemnation awards. The related
Mortgage Loan documents contain provisions pursuant to which the related
Mortgagor, a principal of such Mortgagor or an entity controlled by a
principal of such Mortgagor, has agreed to indemnify the mortgagee for damages
resulting from violations of any applicable environmental laws. 44. Assignment
of Collateral. There is no material collateral securing any Mortgage Loan that
is not being assigned to the Purchaser.
45. Fee Simple Interest. Unless such Mortgage Loan is secured in
whole or in part by a Ground Lease and is therefore the subject of
representation 18, the interest of the related Mortgagor in the Mortgaged
Property securing each Mortgage Loan is a fee simple interest in real property
and the improvements thereon.
46. Escrows. All escrow deposits (including capital improvements and
environmental remediation reserves) relating to any Mortgage Loan that were
required to be delivered to the lender under the terms of the related Mortgage
Loan documents, have been received and, to the extent of any remaining
balances of such escrow deposits, are in the possession or under the control
of Seller or its agents (which shall include the Master Servicer). All such
escrow deposits are being conveyed hereunder to the Purchaser. Any and all
material requirements under each Mortgage Loan as to completion of any
improvements and as to disbursement of any funds escrowed for such purpose,
which requirements were to have been complied with on or before the date
hereof, have been complied with in all material respects or, if and to the
extent not so complied with, the escrowed funds (or an allocable portion
thereof) have not been released except in accordance with the terms of the
related loan documents.
47. Operating Statements. In the case of each Mortgage Loan, the
related Mortgage or another Mortgage Loan document requires the related
Mortgagor, in some cases at the request of the lender, to provide the holder
of such Mortgage Loan with at least quarterly operating statements and rent
rolls (if there is more than one tenant) for the related Mortgaged Property
and annual financial statements of the related Mortgagor, and with such other
information as may be required therein.
I-15
48. Grace Period. With respect to each Mortgage Loan, the related
Mortgage, Mortgage Note or loan agreement provides a grace period for
delinquent monthly payments no longer than fifteen (15) days from the
applicable Due Date or five (5) days from notice to the related Mortgagor of
the default.
49. Disclosure to Environmental Insurer. If the Mortgaged Property
securing any Mortgage Loan identified on Annex C as being covered by a secured
creditor impaired property policy, then the Seller:
(i) has disclosed, or is aware that there has been disclosed, in the
application for such policy or otherwise to the insurer under such policy the
"pollution conditions" (as defined in such policy) identified in any
environmental reports related to such Mortgaged Property which are in the
Seller's possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer under
such policy copies of all environmental reports in the Seller's possession
related to such Mortgaged Property;
in each case to the extent that the failure to make any such disclosure or
deliver any such report would materially and adversely affect the Purchaser's
ability to recover under such policy.
50. No Fraud. No fraud with respect to a Mortgage Loan has taken
place on the part of the Seller or any affiliated originator in connection
with the origination of any Mortgage Loan.
51. Servicing. The servicing and collection practices used with
respect to each Mortgage Loan in all material respects have met customary
standards utilized by prudent commercial mortgage loan servicers with respect
to whole loans.
52. Appraisal. In connection with its origination or acquisition of
each Mortgage Loan, the Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to the Seller's
knowledge, had no interest, direct or indirect, in the Mortgaged Property or
the Mortgagor or in any loan made on the security thereof, and whose
compensation is not affected by the approval or disapproval of the Mortgage
Loan; the appraisal, or a letter from the appraiser, states that such
appraisal satisfies the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, all as in effect on the date the Mortgage Loan was
originated.
53. Origination of the Mortgage Loans. The Seller originated all of
the Mortgage Loans.
I-16
Annex A (to Schedule I)
Exceptions to the Representations and Warranties
Rep. 4 Lien; Valid Assignment
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with regard
to the Mortgaged Property located in Warren, Ohio, the Mortgaged Property is
encumbered by two oil and gas leases that have been partially released.
Surface rights have been released but subsurface oil and gas rights have not.
A mineral rights endorsement to the lender's title insurance policy was
obtained by the lender.
With regard to the Mortgaged Property located in Grapevine, Texas,
the deed of the Mortgaged Property to the Mortgagor contains certain deed
restrictions, including a repurchase option and a right of first refusal with
regard to such Mortgaged Property.
Repurchase Option - The prior owner of the Mortgaged Property
retained a repurchase option which may be exercised upon the occurrence of
certain events, including any violation by the Mortgagor of certain deed
restrictions (including use restrictions), the failure of the Mortgagor to
timely commence and complete construction of the improvements on the Mortgaged
Property, or any discontinuation of operation of the improvements on the
Mortgaged Property for any period in excess of 30 days (or 180 days in the
case of certain "excused closures", which includes closures for substantial
alterations or renovations, or for periods following casualties during which
the Mortgaged Property cannot be opened and operated practicably). Upon any
such repurchase, the repurchase price shall be the sum of (a) the purchase
price paid by the Mortgagor to the prior owner for the Mortgaged Property
(less certain costs and expenses paid or incurred by the prior owner in
connection with such sale), plus (b) the remaining unamortized hard costs of
the improvements constructed at the Mortgaged Property up to the date of such
repurchase (as amortized based on a straight-line method of depreciation over
a recovery period equal to the shorter of (x) the useful life of the subject
improvements calculated under GAAP, or (y) 25 years). The occurrence of any
event which would enable the exercise of such repurchase option constitutes an
event of default under the Mortgage Loan documents.
Right of First Refusal - The prior owner of the Mortgaged Property
has a right of first refusal over any bond-fide offer from an unrelated
third-party relating to the sale, transfer, lease or other conveyance of the
Mortgaged Property. The right of first refusal, however, specifically does not
apply to any foreclosure of a bona-fide mortgage loan made by a bank,
insurance company or other institutional lender.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch:
Right of First Offer: Renaissance Senior Living Management, Inc., the property
manager, has a right of first offer to purchase the property. In the Manager's
Consent and Subordination of Management Agreement, the manager waived its
right of first offer as it relates to any
foreclosure or deed in lieu of foreclosure or any transfer of the property
that occurs after any foreclosure or deed in lieu of foreclosure.
Litigation: In connection with the origination of the loan, the
borrower disclosed a lawsuit with respect to the Property captioned Asset
Capital Group, L.L.C., et al. v. Acacia Place, L.L.C., et al. and IFR Realty
Group, L.L.C. v. Asset Capital Group, L.L.C., et al. (Superior Court of the
State of Arizona Case No. CV2004-000015).
Rep. 6 Mortgage Status; Waivers and Modifications
With respect to Loan No. 6, HSA Industrial Portfolio I, dated as of
June 23, 2005 and effective as of June 8, 2005, the Seller and Borrower
executed a First Amendment to Loan Documents.
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA, dated as of April 25, 2005, the Seller and the
Mortgagors executed a First Amendment to Loan Documents. On June 20, 2005, the
Seller and the Mortgagors executed a Second Amendment to Loan Documents.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch, dated as of April,
2005, the Seller and Borrower executed a First Amendment to Loan Documents. On
June 23, 2005, the Seller and Borrower executed a Second Amendment to Loan
Documents.
With respect to Loan No. 94, Auburn Business Center, dated as of May 2005, the
Seller and Borrower executed a First Amendment to the Loan Documents.
With respect to various Countrywide Loans, the payment dates have been amended
to the 8th day of the month.
Rep. 7 Condition of Property; Condemnation
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with regard
to the Mortgaged Property located in Grapevine, Texas, a storage shed located
on the Mortgaged Property extends approximately 3.5 feet over the applicable
building setback line.
Rep. 8 Title Insurance
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, please see
Rep. 4.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx Ranch, Renaissance
Senior Living Management, Inc., the property manager, has a right of first
offer to purchase the property. In the Manager's Consent and Subordination of
Management Agreement, the manager waived its right of first offer as it
relates to any foreclosure or deed in lieu of foreclosure or any transfer of
the property that occurs after any foreclosure or deed in lieu of foreclosure.
Litigation: In connection with the origination of the loan, the borrower
disclosed a lawsuit with respect to the Property captioned Asset Capital
Group, L.L.C., et al. v. Acacia Place, L.L.C., et al.
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and IFR Realty Group, L.L.C. v. Asset Capital Group, L.L.C., et al. (Superior
Court of the State of Arizona Case No. CV2004-000015), which could have such
affect.
Rep. 10 Mortgage Provisions
With respect to Loan No. 6, HSA Industrial Portfolio I, for so long
as the Terrorism Risk Insurance Act of 2002 ("TRIA") is in effect (including
any extensions), the lender shall accept terrorism insurance which covers
against "covered acts" as defined by TRIA.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center, the
Mortgagor shall maintain terrorism insurance provided such coverage is
generally available at commercially reasonable rates as determined by Lender.
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, The
Mortgagors are obligated to carry comprehensive general liability insurance,
including contractual injury, bodily injury, broad form death and property
damage liability, "dramshop" or other liquor liability coverage if alcoholic
beverages are sold from or may be consumed at the Mortgaged Properties, and
umbrella liability insurance against any and all claims, including all legal
liability to the extent insurable imposed upon the Mortgagors and all court
costs and attorneys' fees and expenses, arising out of or connected with the
possession, use, leasing, operation, maintenance or condition of the Mortgaged
Properties, as are customarily maintained in businesses such as those operated
by the Mortgagors.
Mortgagors' insurance policies in place upon origination of the
Mortgage Loan are deemed to comply with the requirements of the Mortgage Loan
documents until the expiration of the then-current term of such insurance
policies.
For so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is
in effect (including any extensions), the lender shall accept terrorism
insurance which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, with regard
to the Mortgaged Properties which consist of the related Mortgagor's
underlying fee simple interest in the Mortgaged Property (subject to a Ground
Lease), the Mortgagor is not required to carry insurance as provided for in
the Mortgage Loan documents to the extent that the ground tenant under such
Ground Lease carries such insurance. The proceeds of any insurance policies
carried by the ground tenant under such Ground Lease must be either (a)
applied to the restoration or repair of the relevant Mortgaged Property or (b)
applied toward repayment (i) first, of the Xxxxxxxxxx Portfolio Pool B
Mortgage Loan, and (ii) second, of the Mortgage Loan, to the extent of any
excess proceeds.
The Mortgagors are obligated to carry comprehensive general
liability insurance, including contractual injury, bodily injury, broad form
death and property damage liability, "dramshop" or other liquor liability
coverage if alcoholic beverages are sold from or may be consumed at the
Mortgaged Properties, and umbrella liability insurance against any and all
claims, including all legal liability to the extent insurable imposed upon the
Mortgagors and all court costs and attorneys' fees and expenses, arising out
of or connected with the possession, use,
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leasing, operation, maintenance or condition of the Mortgaged Properties, as
are customarily maintained in businesses such as those operated by the
Mortgagors.
Mortgagors' insurance policies in place upon origination of the
Mortgage Loan are deemed to comply with the requirements of the Mortgage Loan
documents until the expiration of the then-current term of such insurance
policies.
For so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is
in effect (including any extensions), the lender shall accept terrorism
insurance which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 29 and 92, Tuscany at XxXxxxxxx Ranch and
Bridgeworks Industrial Center, for so long as the Terrorism Risk Insurance Act
of 2002 ("TRIA") is in effect (including any extensions), the lender shall
accept terrorism insurance which covers against "covered acts" as defined by
TRIA.
In addition to the above exceptions, the other Countrywide loans may
contain similar or other limitations with respect to terrorism insurance, such
as limits relating to a requirement that terrorism insurance only be obtained
so long as it is commercially available, limits relating to the amount of
premium that is required to be paid for terrorism insurance and other
limitations.
Rep. 12 Environmental Conditions
With respect to all of Countrywide's Loans, in the Mortgage Loan
documents, the Mortgagor represents, warrants and covenants, as to itself and
the Mortgaged Property: (a) other than as disclosed to the lender in the
environmental report obtained in connection with the origination of the
Mortgage Loan, there are no hazardous substances or underground storage tanks
in, on, or under the Mortgaged Property, except those that are both (i) in
compliance with all environmental laws and with permits issued pursuant
thereto and (ii) which do not require remediation; (b) there are no past,
present or threatened releases of hazardous substances in, on, under, from or
affecting the Mortgaged Property which have not been fully remediated in
accordance with environmental laws; (c) there is no release or threat of any
release of hazardous substances which has or is migrating to the Mortgaged
Property; (d) there is no past or present non-compliance with environmental
laws, or with permits issued pursuant thereto, in connection with the
Mortgaged Property which has not been fully remediated in accordance with
environmental laws; (e) the Mortgagor does not know of, and has not received,
any written or oral notice or other communication from any person (including,
without limitation, any governmental authority) relating to hazardous
substances or the remediation thereof, of possible liability of any person
pursuant to any environmental law, other environmental conditions in
connection with the Mortgaged Property, or any actual or potential
administrative or judicial proceedings in connection with any of the
foregoing; and (f) the Mortgagor has truthfully and fully provided to the
lender, in writing, any and all information relating to conditions in, on,
under or from the Mortgaged Property that is known to the Mortgagor and that
is contained in files and records of the Mortgagor, including, without
limitation, any reports relating to hazardous substances in, on, under or from
the Mortgaged Property and/or to the environmental condition of the Mortgaged
Property.
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The Mortgagors and the environmental indemnitor are not obligated
under the Mortgage Loan documents to indemnify the lender or any other
indemnified party (a) for any losses which arise out of the fraud or willful
misconduct of the lender or any other indemnified party, or (b) to the extent
the fact, circumstances or event relating to any affected Mortgaged Property
first arises or accrues from or after any foreclosure by the lender or any
other indemnified party, or acceptance of a deed in lieu thereof, or lender or
any other indemnified party or a designee thereof takes physical possession of
such Mortgaged Property pursuant to any rights or remedies provided for in the
Mortgage Loan documents.
With respect to Loan No. 6, HSA Industrial Portfolio I, in the
Mortgage Loan documents, Mortgagor represents, warrants and covenants, as to
itself and the Mortgaged Property: other than as disclosed to the lender in
the environmental report obtained in connection with the origination of the
Mortgage Loan, to Mortgagor's knowledge (a) there are no hazardous substances
or underground storage tanks in, on, or under the Mortgaged Property, except
those that are both (i) in compliance with all environmental laws and with
permits issued pursuant thereto and (ii) which do not require remediation; (b)
there are no past, present or threatened releases of hazardous substances in,
on, under, from or affecting the Mortgaged Property which have not been fully
remediated in accordance with environmental laws if such remediation is
required by environmental law; (c) there is no release or threat of any
release of hazardous substances which has or is migrating to the Mortgaged
Property; (d) there is no past or present non-compliance with environmental
laws, or with permits issued pursuant thereto, in connection with the
Mortgaged Property which has not been fully remediated in accordance with
environmental laws; (e) the Mortgagor does not know of, and has not received,
any written notice or other written communication from any person (including,
without limitation, any governmental authority) relating to hazardous
substances or the remediation thereof, of possible liability of any person
pursuant to any environmental law, other environmental conditions in
connection with the Mortgaged Property, or any actual or potential
administrative or judicial proceedings in connection with any of the
foregoing; and (f) the Mortgagor has truthfully and fully provided to the
lender, in writing, any and all information relating to conditions in, on,
under or from the Mortgaged Property that is known to the Mortgagor and that
is contained in files and records of the Mortgagor, including, without
limitation, any reports relating to hazardous substances in, on, under or from
the Mortgaged Property and/or to the environmental condition of the Mortgaged
Property.
Rep. 14 Insurance
With respect to Loan Xx. 0 xxx 00, XXX Xxxxxxxx Xxxx I and Dulles
Creek, for so long as the Terrorism Risk Insurance Act of 2002 ("TRIA") is in
effect (including any extensions), the mortgagee shall accept terrorism
insurance which covers against "covered acts" as defined by TRIA.
With respect to Loan No. 6, HSA Industrial Portfolio I, please see
Rep. 10.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxx shall maintain "all risks" insurance in an amount equal to the
greater of (i) $30,600,000 or (ii) the full insurable value of the
Improvements, Equipment and Inventory located on the Property.
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, please see
Rep.10
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, please see
Rep.10
With respect to Loan Xx. 00, XXX--Xxxxxxxxx, Xxxxxx is responsible
for providing the insurance; however, the loan documents allow Lender to
require Borrower to provide any insurance coverages required by the loan
documents that are not provided by the tenant pursuant to its lease at the
property.
With respect to Loan No. 92, Bridgeworks Industrial Center, please
see Rep.10
In addition to the above exceptions, the other Countrywide loans may
contain similar or other limitations with respect to terrorism insurance, such
as limits relating to a requirement that terrorism insurance only be obtained
so long as it is commercially available, limits relating to the amount of
premium that is required to be paid for terrorism insurance and other
limitations.
Rep. 17 Local Law Compliance
With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, according to
the zoning consultant report obtained in connection with the origination of
the Mortgage Loan, with regard to the Mortgaged Property located in
Independence, Missouri (Residence Inn), the Mortgaged Property is deficient 3
parking spaces under the applicable zoning restrictions. The Mortgagor has
covenanted in the Mortgage Loan documents to notify the lender promptly of any
written notice or order that the Mortgagor receives from any governmental
authority relating to Mortgagor's failure to comply with such applicable legal
requirements relating to the Mortgaged Property (including, without
limitation, any such notice regarding shortages in parking spaces under
applicable zoning ordinances) and promptly take any and all actions necessary
to bring its operations at the Mortgaged Property into compliance therewith
(and shall fully comply with the requirements of such legal requirements that
at any time are applicable to its operations at the Mortgaged Property);
provided, however, that the Mortgagor, at its expense may, after prior notice
to the lender, contest by appropriate legal, administrative or other
proceedings conducted in good faith and with due diligence, the validity or
application, in whole or in part, of any such applicable legal requirements as
long as certain conditions set forth in the Mortgage Loan documents are
satisfied with respect to such contest at all times.
The law and ordinance policy maintained by the Mortgagors has an
aggregate liability cap of $20,000,000, and such law and ordinance policy does
not cover losses sustained as a result of terrorist acts.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, According to
the zoning consultant reports obtained in connection with the origination of
the Mortgage Loan, (a) with regard to the Mortgaged Property located in
Roseville, Minnesota, the Mortgaged Property is deficient 1 parking space
under the applicable zoning restrictions; (b) with regard to the Mortgaged
Property located in Racine, Wisconsin, the Mortgaged Property is deficient 2
parking spaces under the applicable zoning restrictions; (c) with regard to
the Mortgaged Property located in Independence, Missouri (Residence Inn),
which is ground leased by the applicable Mortgagor to one of the borrowers
under the Xxxxxxxxxx Portfolio Loan B, the Mortgaged
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Property is deficient 3 parking spaces under the applicable zoning
restrictions; (d) with regard to the Mortgaged Property located in Missoula,
Montana, the number of parking spaces at the Mortgaged Property is legally
conforming under the applicable zoning restrictions so long as no more than 4
employees are on duty at any time (with 1 additional parking space being
required for each 4 additional employees on duty at any time, in excess of 4);
and (e) with regard to the Mortgaged Property located in Cheyenne, Wyoming,
the number of parking spaces at the Mortgaged Property is legally conforming
under the applicable zoning restrictions so long as no more than 8 employees
are on duty at any time (with 1 additional parking space being required for
each 2 additional employees on duty at any time, in excess of 8).
The Mortgagors have covenanted in the Mortgage Loan documents to
notify the lender promptly of any written notice or order that the Mortgagor
receives from any governmental authority relating to Mortgagor's failure to
comply with such applicable legal requirements relating to the Mortgaged
Property (including, without limitation, any such notice regarding shortages
in parking spaces under applicable zoning ordinances) and promptly take any
and all actions necessary to bring its operations at the Mortgaged Property
into compliance therewith (and shall fully comply with the requirements of
such legal requirements that at any time are applicable to its operations at
the Mortgaged Property); provided, however, that the Mortgagor, at its expense
may, after prior notice to the lender, contest by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the validity or application, in whole or in part, of any such
applicable legal requirements as long as certain conditions set forth in the
Mortgage Loan documents are satisfied with respect to such contest at all
times.
The law and ordinance policy maintained by the Mortgagors has an
aggregate liability cap of $20,000,000, and such law and ordinance policy does
not cover losses sustained as a result of terrorist acts.
Rep. 18 Leasehold Estate Only
(ii) With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, the
underlying fee simple interests in three of the Mortgaged Properties are
encumbered by the Xxxxxxxxxx Portfolio IIA Mortgage Loan; however, neither the
liens of the Mortgage Loan nor the Xxxxxxxxxx Portfolio IIA Mortgage Loan, are
subordinate to the liens of the other loan.
(vi) With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, with
regard to any monetary default by a Mortgagor under any Ground Lease, the
lender shall have an additional sixty days following the expiration of the
Mortgagor's cure period under the Ground Lease in order to cure such monetary
default.
(vii) With respect to Loan No. 56, Xxxx & Buster's, the related
ground lease has an original term that expires prior to a date that is the 5th
anniversary of the Stated Maturity Date and the related ground lease including
all extensions extend to a date that is 3 months less than 20 years beyond the
Stated Maturity Date of the related Mortgage Loan.
Rep. 22 Legal Proceedings
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, a class action lawsuit
has been filed against the sponsor of the Mortgagors and certain related
parties concerning the formation of the Xxxxxxxxxx Motels, Inc. Employee Stock
Option Plan (the "ESOP"), which is the majority owner of Xxxxxxxxxx Motels,
Inc. (the indirect owner of the underlying fee interests in each of the
Mortgaged Properties). None of the Mortgagors are named as defendants in such
lawsuit.
A lawsuit has been filed against the sponsor of the Mortgagors and certain
related parties concerning breach of a real estate development contract. The
parties thereafter entered into a settlement agreement, which the plaintiff is
now challenging. None of the Mortgagors are named as defendants in such
lawsuit, however, the disputed settlement agreement involves, among other
things, a six percent (6%) ownership interest in the Mortgaged Property
located in Rancho Cordova, California.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, a class action lawsuit
has been filed against the sponsor of the Mortgagors and certain related
parties concerning the formation of the Xxxxxxxxxx Motels, Inc. Employee Stock
Option Plan (the "ESOP"), which is the majority owner of Xxxxxxxxxx Motels,
Inc. (the indirect owner of each of the Mortgagors). None of the Mortgagors
are named as defendants in such lawsuit.
A lawsuit has been filed against the sponsor of the Mortgagors and certain
related parties concerning breach of a real estate development contract. The
parties thereafter entered into a settlement agreement, which the plaintiff is
now challenging. The settlement does not involve any of the Mortgagors or the
Mortgaged Properties.
With respect to Loan Xx. 00, Xxxxxxx at XxXxxxxxx, in connection with the
origination of the loan, the borrower disclosed a lawsuit with respect to the
Property captioned Asset Capital Group, L.L.C., et al. v. Acacia Place,
L.L.C., et al. and IFR Realty Group, L.L.C. v. Asset Capital Group, L.L.C., et
al. (Superior Court of the State of Arizona Case No. CV2004-000015), which
could have such affect.
Rep. 23 Other Mortgage Liens
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center, the loan
documents do not require Mortgagor to pay all reasonable costs and expenses
related to any required consent to an encumbrance.
With respect to existing and future mezzanine debt see the
exceptions set forth to rep. 34.
Rep. 26 Licenses and Permits
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA , with regard to certain of the Mortgaged Properties,
the liquor license relating to such Mortgaged Property, if any, may be held by
an affiliate of the applicable Mortgagor.
With respect to Loan No. 92, Bridgeworks Industrial Center,
according to the zoning consultant report obtained in connection with the
origination of the Mortgage Loan, (a)
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no certificate of occupancy was issued for the Mortgaged Property because a
portion of the building is owned by the City of Allentown, and the City will
not issue a certificate of occupancy to itself, and (b) the absence of a
certificate of occupancy on file with the City is not considered to be a
violation of zoning regulations and will not lead to any enforcement action.
Rep. 28 Release of Mortgaged Properties
With respect to Loan No. 6, HSA Industrial Portfolio I, provided that no Event
of Default has occurred and is continuing under any of the Loan Documents, at
any time prior to the Defeasance Start Date, Borrower, in connection with a
bona fide sale of an Individual Property to an unaffiliated third party, may
obtain the release of such Individual Property (a "Partial Release") from the
lien of the applicable Mortgage (and other Loan Documents ) and the release of
such Borrower's ongoing obligations under the Note and other Loan Documents
with respect to such Individual Property (other than those expressly stated to
survive), so long as all of the following conditions shall have been
satisfied:
a. Borrower shall have provided Lender with no less than thirty (30) days,
but no more than ninety (90) days, prior written notice of its request to
obtain a release of the applicable Property;
b. Lender shall have received a prepayment of the Loan in an amount equal to
the greater of (a) 85% of the gross sale price (as determined by Lender
in Lender's reasonable discretion) of the Property sold; (b) 120% of the
Allocated Loan Amount for the Property sold; or (c) the amount which,
after giving effect to such prepayment would result in a Debt Service
Coverage Ratio of at least 1.25, which prepayment shall be accompanied by
(i) all accrued and unpaid interest on the Principal Indebtedness as of
the date of such prepayment, (ii) if such prepayment is not made on a
Payment Date, the interest which would have accrued thereon to the next
monthly Payment Date with respect to the amount prepaid, and (iii) the
Yield Maintenance Premium;
c. Borrower shall not be permitted to obtain a Partial Release if the
aggregate amount of principal paid pursuant to the two Partial Releases
permitted hereunder would exceed $25,000,000;
d. Borrower shall not be entitled to more than two Partial Releases during
the term of the Loan. In connection with any Partial Release pursuant to
this Section, if Borrower elects to obtain a release of either of the
Westbelt Properties, Borrower must simultaneously make a prepayment and
obtain a release of the other Westbelt Property, both in accordance with
this Section, provided however that such Partial Release of the Westbelt
Properties shall be considered one release for the purpose of determining
the total number of Partial Releases permitted;
e. Mezzanine Lender shall have received a prepayment of the Mezzanine Loan
from Mezzanine Borrower simultaneously with the prepayment described in
Section 2.7(b), in such amount and in such manner in accordance with
Section 2.4(d) of the Mezzanine Loan Agreement;
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f. Borrower shall have submitted to Lender, not less than ten (10) Business
Days prior to the date of such Partial Release, all necessary and
appropriate documentation concerning the release of the lien of the
applicable Mortgage (and other Loan Documents) for such Property, for
execution by Lender. Such release documentation shall be in a form
appropriate in the State in which such Property is located and shall
contain standard provisions, if any, protecting the rights of Lender. In
addition, Borrower shall provide any and all other documentation Lender
customarily requires in the State where the applicable Property is
located, to be delivered by Borrower in connection with such Partial
Release, together with an officer's certificate certifying that such
documentation is in compliance with all Legal Requirements in all
material respects.
g. Lender shall have received evidence reasonably satisfactory to Lender
that the applicable Property to be released shall be conveyed to a Person
other than any Borrower or any Affiliate of any of the Borrowers; and
h. Lender shall receive reimbursement in full (no later than the closing
date of such Partial Release transaction) of all of Lender's fees, costs
and expenses, including without limitation, reasonable legal counsel fees
and disbursements incurred in connection with the Partial Release, and
the review and approval of all documents and information required to be
delivered in connection therewith.
Rep. 34 Due-on-Sale
With respect to Loan No. 6, HSA Industrial Portfolio I, not more than twice,
all of the Mortgaged Properties may be sold to another party who shall assume
the Loan (the "Transferee Borrower"), provided that prior to such sale (a)
Mortgagor shall pay to Mortgagee a transfer fee in the amount of one-quarter
of one percent (.25%) of the loan amount, plus any reasonable costs or fees
incurred by Mortgagee in connection with such sale and assumption, (b) after a
secondary market transaction, Mortgagor shall deliver (or cause to be
delivered) to Mortgagee a rating agency confirmation with respect to such
transfer, (c) the identity, experience, financial condition, creditworthiness,
single purpose nature and bankruptcy remoteness of the Transferee Borrower and
the replacement guarantors and indemnitors shall be reasonably satisfactory to
Mortgagee, (d) Mortgagor, Transferee Borrower, guarantor and the replacement
guarantors and indemnitors shall execute and deliver any and all documentation
as may be reasonably required by Mortgagee or required by the rating agencies,
as the case may be, in form and substance reasonably satisfactory to Mortgagee
or satisfactory to the rating agencies, as the case may be, in Mortgagee's
reasonable discretion or the rating agencies' discretion, as applicable, (e)
counsel to Transferee Borrower and the replacement guarantors and indemnitors
shall deliver to Mortgagee and the rating agencies opinion letters relating to
such transfer (including, without limitation, tax, bankruptcy and REMIC
opinions) in form and substance reasonably satisfactory to Mortgagee and
satisfactory to the rating agencies in Mortgagee's reasonable discretion and
the rating agencies' discretion, (f) Mortgagor shall deliver (or cause to be
delivered) to Mortgagee, an endorsement to the title insurance policy relating
to the change in the identity of the vestee and the execution and delivery of
the transfer documentation in form and substance reasonably acceptable to
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Mortgagee and (g) Mortgagor pays all reasonable expenses incurred by Mortgagee
in connection with such transfer, including, without limitation, Mortgagee's
reasonable attorneys fees and expenses, all recording fees, and all fees
payable to the title company for the delivery to Mortgagee of the endorsement
referred to in clause (f) above and (h) the mezzanine loan shall be paid in
full in accordance with the terms of the mezzanine loan documents. In
connection with the sale of all of the Mortgaged Properties and the assumption
of the Loan, subject to Section 4.42, Section 12.1, and Section 12.20, as
those sections relate to obligations which accrued prior to the date of such
sale and assumption, Mortgagee shall release Mortgagor and guarantor from
their obligations under the Mortgage Agreement Loan Documents that accrue
after such assumption, provided that all of the requirements of this section
have been met and provided further that nothing in this section shall
constitute a release of any liability or obligation relating to any
environmental matters arising under Article 9 of the Mortgage Loan Agreement;
Not more than once, there may be a transfer, simultaneously, by three of the
individual borrowers of all of the interests in all of the Mortgaged
Properties held by each of such three individual borrowers to the remaining
individual borrower who shall assume all of the obligations of the other three
individual borrowers under the Mortgage Loan Documents, provided that (a)
Mortgagor shall pay to Mortgagee a processing fee in the amount of $10,000
plus any reasonable costs or fees incurred by Mortgagee in connection with
such sale and assumption; (b) the mezzanine loan shall be simultaneously paid
in full in accordance with the mezzanine loan documents or the mezzanine loan
shall be simultaneously assumed in accordance with paragraph (iv) of the
definition of permitted transfers in the mezzanine loan agreement; (c)
Mortgagor shall execute and deliver any and all documentation as may be
reasonably required by Mortgagee in form and substance reasonably satisfactory
to Mortgagee in Mortgagee's reasonable discretion to evidence the assumption
by the remaining individual borrower of all obligations of the other
individual borrowers under the Loan; (d) counsel to Mortgagor shall deliver to
Mortgagee opinion letters relating to such transfer (including, without
limitation, tax, bankruptcy and REMIC opinions (if necessary)) in form and
substance reasonably satisfactory to Mortgagee in Mortgagee's reasonable
discretion, (e) Mortgagor shall deliver (or cause to be delivered) to
Mortgagee, an endorsement to the title insurance policy relating to the change
in the identity of the vestee and the execution and delivery of the transfer
documentation in form and substance reasonably acceptable to Mortgagee and (f)
Mortgagor shall pay all reasonable expenses incurred by Mortgagee in
connection with such transfer, including, without limitation, Mortgagee's
reasonable attorneys fees and expenses, all recording fees, and all fees
payable to the title company for the delivery to Mortgagee of the endorsement
referred to in clause (e) above.
The mortgage lender made a mezzanine loan to the owner of one
hundred percent (100%) of the equity interests in the Mortgage Borrower, which
loan is secured by a pledge of one hundred percent (100%) of such equity
interests. The initial pledge of such equity interests is a permitted transfer
under the mortgage loan. In addition, a transfer of such equity interests to
the mezzanine lender in connection with the exercise of the mezzanine lender's
rights and remedies under the mezzanine loan document is permitted without the
prior written consent of the mortgage lender provided that such transfer is
made in accordance with the terms of the intercreditor agreement.
With respect to Loan Xx. 00, Xxxxxxx Xxxxx Shopping Center,
provisions regarding transfers by Borrowers attached hereto as Exhibit A.
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With respect to Loan Xx. 00, Xxxxxxxxxx Xxxxxxxxx XXX, the following
occurrences are also deemed to be permitted transfers under the Mortgage Loan
documents, which shall not require the consent of the lender: (a) any change
in the trustee of any estate planning trust which holds a direct or indirect
interest in any Mortgagor so long as such trustee is a financial institution;
and (b) any equity conversion transaction contemplated in the requisite
subordination agreement relating to certain unsecured indebtedness of either
H.I. Management of Rancho Xxxxxxx, Inc. or F.I. Management of Niles, Inc., in
favor of certain direct or indirect owners of either such Mortgagor, which
unsecured indebtedness may be in an aggregate amount not to exceed $3,500,000,
and may be incurred by such Mortgagors subject to certain conditions set forth
in the Mortgage Loan documents. In addition, the Mortgage Loan documents
permit the incurrence of future mezzanine debt, subject to the satisfaction of
certain conditions set forth in the Mortgage Loan documents.
With respect to Loan No. 16, Xxxxxxxxxx Portfolio IIA, the following
occurrences are also deemed to be permitted transfers under the Mortgage Loan
documents, which shall not require the consent of the lender: (a) any change
in the trustee of any estate planning trust which holds a direct or indirect
interest in any Mortgagor so long as such trustee is a financial institution;
and (b) any change in the "Trustee" or the "Committee" (as defined in the
ESOP) of the Xxxxxxxxxx Motels, Inc. Employee Stock Option Plan and Trust, as
amended and restated, effective as of January 1, 2002 (the "ESOP"); provided
that no such change shall, without the prior written consent of the lender,
result, directly or indirectly, in a change in the identity of a majority of
the following five (5) key management individuals holding senior executive
management positions of Xxxxxxxxxx Motels, Inc.: Xxxx Xxxxxxxxxx, Xxxxxxx
Croves, Xxxxx Xxxx, Xxxx Xxxxxxxxxx, and Xxxx Xxxxxxx; provided further that
upon the occurrence at any time during the term of the Mortgage Loan of any
review and consent by the lender of any such changes in key personnel, no
further consent will be required by the lender as to such management group,
except to the extent of any change in the identity of a majority of the five
(5) key management individuals then holding such senior executive management
positions of Xxxxxxxxxx Motels, Inc. In addition, the Mortgage Loan documents
permit the incurrence of future mezzanine debt, subject to the satisfaction of
certain conditions set forth in the Mortgage Loan documents.
With respect to Loan No. 21, Holy Cross Medical Center, transfers of
membership, partnership or shareholder interests in Borrower, by a current
member, partner or shareholder, as applicable, to an immediate family member
(i.e., parents, spouses, siblings, children or grandchildren) of such member,
partner or shareholder or to a trust for the benefit of an immediate family
member of such member, partner or stockholder;
Transfers by devise or descent or by operation of law upon the death
of a member, a partner or stockholder of Borrower, Guarantor or any member,
partner or stockholder thereof; and
Transfers, sales or pledges of G&L Realty Corp.'s stock by operation
of law or otherwise or all or substantially all of its assets; provided same
(a) does not result in a Material Adverse Effect, (b) is reasonably approved
by Lender and (c) Borrower reimburses Lender for all reasonable expenses (not
including a transfer fee) incurred by Lender in connection with such transfer.
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With respect to all of Countrywide's loans in addition to the above
stated exceptions, the Property may be transferred without the written consent
of the Lender in sales of the entire Property to another party (the
"Transferee Borrower"), provided that prior to such sale the following
conditions, among others, are met: (a) Borrower may be required to pay to
lender a transfer fee, (b) the identity, experience, financial condition,
creditworthiness, single purpose nature and bankruptcy remoteness of the
Transferee Borrower and the replacement guarantors and indemnitors shall be
reasonably satisfactory to Lender, (c) Borrower, Transferee Borrower,
Guarantor and the replacement guarantors and indemnitors shall execute and
deliver any and all documentation as may be reasonably required by Lender, in
form and substance reasonably satisfactory to Lender in Lender's reasonable
discretion (including, without limitation, assumption documents), (d) counsel
to Transferee Borrower and the replacement guarantors and indemnitors shall
deliver to Lender opinion letters relating to such transfer (including,
without limitation, tax, bankruptcy and REMIC opinions) in form and substance
reasonably satisfactory to Lender in Lender's reasonable discretion, and (e)
Borrower pays all reasonable expenses incurred by Lender in connection with
such transfer, including, without limitation, Lender's reasonable attorneys
fees and expenses, all recording fees, and all fees payable to the Title
Company for the delivery to Lender of the endorsement referred to in clause
(e) above.
The following Countrywide loans have additional debt:
With respect to Loan No. 4, ACP Woodland Park I, in order to
partially fund the equity contribution of the indirect owners of 37.5% of the
managing member of the parent of the borrower, certain entities owned by
Baupost Group LLC, a group that indirectly owns 90% of the parent of the
borrower, have provided a revolving line of credit, which was drawn upon in
the amount of $2,000,000. This line of credit is secured by a pledge of such
owners' equity in the managing member of the parent of the borrower and is
paid solely out of the excess cash flow.
With respect to Loan No. 11 and Loan No.16, Xxxxxxxxxx Portfolio IIB
and Xxxxxxxxxx Portfolio IIA, two of the borrowers are permitted to incur up
to $3,500,000 of unsecured debt from their affiliates. As of the date of
origination of the Xxxxxxxxxx IIB Loan, one of the borrowers incurred
unsecured debt from its affiliates, which is evidenced by two promissory notes
in the amount of $244,163.25 and $11,488.60, respectively.
With respect to Loan No. 28, Dulles Creek, in order to partially
fund the equity contribution of the indirect owners of 100% of the managing
member of the parent of the borrower, Baynorth Realty Fund VI Limited
Partnership, the entity that owns 90% of the parent of the borrower, has
provided a revolving line of credit, which was drawn upon in the amount of
$1,500,000. This line of credit is secured by a pledge of such owners' equity
in the managing member of the parent of the borrower and is paid solely out of
excess cash flow.
The following Countrywide loans permit mezzanine debt in the future,
subject to satisfaction of certain conditions set forth in the related
mortgage loan document:
(a) Tuscany at XxXxxxxxx Ranch, (b) Euless Town Center, (c) The
Corners Apartments, (d) Boulder Palms Senior Apartments, (e) ACP Woodland Park
I, (f) 24-Hour Fitness-Henderson, NV, (g) 24-Hour Fitness-Monrovia, (h) Xxxx &
Busters- San Diego, (i)
-00-
Xxxxxxx Xxxxx, (x) HSA Industrial Portfolio I, (k) Xxxxxxxxxx Portfolio IIA
and (l) Xxxxxxxxxx Portfolio IIB.
The following Countrywide loans have existing mezzanine debt:
With respect to Loan No. 6, HSA Industrial Portfolio I, at the time
of the origination of the, the lender also made a $4,200,000 mezzanine loan to
the equity owners of the related borrowers. The mezzanine loan is secured by a
pledge of 100% of the equity interests in the related borrower. In addition,
at any time after payment in full of the mezzanine loan, the mezzanine
borrower may obtain a new mezzanine loan, secured by a pledge of the mezzanine
borrower's direct equity interest in the borrowers, provided that the
mezzanine borrower satisfies certain conditions.
With respect to Loan No. 94, Auburn Business Center, the related
borrower is permitted, subject to the satisfaction of certain conditions
provided for in the mortgage loan documents, to transfer its interest to
tenants-in-common.
Rep. 35 Single Purpose Entity
With respect to Loan No. 6, HSA Industrial Portfolio I, each of the
ten Mortgaged Properties is owned jointly by each of the four Mortgagors as
tenants in common. The Mortgage Borrowers commingle funds for the purpose of
paying their collective obligations.
With respect to Loan No. 27, First National Bank of Arizona
Headquarters, the organizational documents of Mortgagor do not contain single
purpose entity provisions, but such provisions are contained in the Loan
Agreement.
With respect to Loan No. 52 and 59, Arcadia Del Sol Apartments and
000 Xxxxxxxxx Xxxxxx, the organizational documents of the borrower do not
contain single purpose entity provisions, however, the Mortgagor covenants in
the loan documents that it is and will remain a Single-Purpose Entity.
With respect to Loan Xx. 00 xxx 00, Xxxxxx Xxxxxx Xxxxxx xxx Xxxxx
Xxxxxxx Center, the organizational documents of the borrower do not contain
single purpose entity provisions.
With respect to Loan No. 77, Center Medical Building, SPE covenants
are included in loan documents, not organizational documents. It is not a
single purpose entity because it owns a parking garage that is not part of
Countrywide's collateral.
With respect to Loan No. 92, Bridgeworks Industrial Center, the
borrower is a not-for-profit redevelopment organization, not a single purpose
entity.
With respect to Loan Xx. 00, Xxxxxx Xxxxxx Xxxx Homes, Borrower's
organizational documents do not contain SPE provisions. The Borrower is bound
by the SPE covenants in the Loan Documents.
Rep. 43 Recourse
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With respect to Loan Xx. 0 xxx 00, XXX Xxxxxxxx Xxxx I and Dulles
Creek, the related Mortgage Loan documents contain provisions providing
recourse against the related Mortgagor and certain principals of such
Mortgagor for damages, liabilities, expenses or claims sustained in connection
with any intentional act of waste of the related Mortgaged Property or any
material portion thereof, or, during the continuance of any event of default,
the removal or disposal of any portion of the Mortgaged Property.
With respect to Loan No. 6, HSA Industrial Portfolio I, in addition
to certain other recourse carve-out liability, the Mortgagor is liable to the
lender for (a) the misapplication or conversion of rents, insurance proceeds
or condemnation proceeds, and (b) the misappropriation of rents collected in
advance.
With respect to Loan No. 11 and 16, Xxxxxxxxxx Portfolio IIB and
Xxxxxxxxxx Portfolio IIA, in addition to certain other recourse carve-out
liability, the Mortgagor and the carve-out guarantor are liable to the lender
for any losses arising out of or in connection with any act of willful waste
of the Mortgaged Property or any portion thereof.
With respect to Loan No. 29 and 92, Tuscany at XxXxxxxxx Ranch and
Bridgeworks Industrial Center, in addition to certain other recourse carve-out
liability, the Mortgagor is liable to the lender for (a) the misapplication or
conversion of rents, insurance proceeds or condemnation proceeds, and (b) the
misappropriation of rents collected in advance.
Rep. 45 Fee Simple Interest
With respect to Loan No. 6, HSA Industrial Portfolio I, each of the
ten Mortgaged Properties is owned jointly by each of the four Mortgagors as
tenants in common.
Rep. 47 Operating Statements
With respect to Loan No. 29, Tuscany at XxXxxxxxx Ranch, Borrower
must furnish lender with quarterly unaudited financial statement in form and
substance acceptable to lender in lender's discretion and include a property
management report which shows property income and expenses and property
operating statistics.
-31-
EXHIBIT A
Permitted Transfer Provisions
"Permitted Transfers" means, provided that no Event of Default has
occurred and is continuing:
(i) Permitted Encumbrances;
(ii) all transfers of worn out or obsolete furnishings, fixtures or
equipment that are promptly replaced with property of equivalent value and
functionality (unless Borrower reasonably determines such replacement is not
necessary for operation of the Property and would not have a Material Adverse
Effect);
(iii) all Leases which are not Material Leases;
(iv) all Material Leases which have been approved by Lender in
accordance with Section 5.19;
(v) transfers (but not pledges) of Equity Interests in any Borrower
which in the aggregate during the term of the Loan (a) do not exceed
forty-nine percent (49%) of the total direct or indirect legal or beneficial
ownership interests in such Borrower, (b) do not result in any partner's,
member's or other Person's interest in such Borrower exceeding forty-nine
percent (49%) of the total direct or indirect legal or beneficial ownership
interests in Borrower (unless the transferee previously owned more than 49% of
the Equity Interests in such Borrower) and (c) do not cause the transferee to
acquire control of such Borrower;
(vi) any other transfer of any other direct or indirect legal or
beneficial ownership interest in any Borrower, provided that (a) Lender shall
have consented to such transfer (b) after any Secondary Market Transaction,
such Borrower shall deliver (or cause to be delivered) to Lender a Rating
Agency Confirmation with respect to such transfer, (c) such Borrower shall
deliver to Lender and the Rating Agencies opinion letters relating to such
transfer (including, without limitation, tax and bankruptcy opinions) in form
and substance satisfactory to Lender and the Rating Agencies, and (d) such
Borrower pays all reasonable expenses incurred by Lender in connection with
such transfer;
(vii) sales of the entire Property to another party (the "Transferee
Borrower"), provided that prior to such sale (a) Borrower shall pay to Lender
a transfer fee in the amount of one percent (1%) of the Principal
Indebtedness, (b) Lender shall consent to such transfer (such consent to not
be unreasonably withheld, conditioned or delayed by Lender), (c) after a
Secondary Market Transaction, Borrower shall deliver (or cause to be
delivered) to Lender a Rating Agency Confirmation with respect to such
transfer, (d) the identity, experience, financial condition, creditworthiness,
single purpose nature and bankruptcy remoteness of the Transferee Borrower and
the replacement guarantors and indemnitors shall be satisfactory to Lender in
-32-
Lender's reasonable discretion, (e) Borrower, Transferee Borrower, Guarantor
and the replacement guarantors and indemnitors shall execute and deliver any
and all documentation to effectuate the transfer as may be required by Lender
or the Rating Agencies, in form and substance satisfactory to Lender or the
Rating Agencies in Lender's or the Rating Agencies' discretion, as applicable
(which documents in any event shall provide for: (A) a release of the Borrower
(and all Guarantors) from all liability under the Loan for act or events first
occurring after the effective date of the Transfer; and (B) an estoppel
certificate from Lender in the form referred to in Section 12.22 and
containing a statement as to the Principal Indebtedness owed as of the date of
transfer and the amount of all reserves held by Lender), (f) counsel to
Transferee Borrower and the replacement guarantors and indemnitors shall
deliver to Lender and the Rating Agencies opinion letters relating to such
transfer (including, without limitation, tax, bankruptcy and REMIC opinions)
in form and substance satisfactory to Lender and the Rating Agencies in
Lender's and the Rating Agencies' discretion, as applicable, (g) Borrower
shall deliver (or cause to be delivered) to Lender, an endorsement to the
Title Insurance Policy relating to the change in the identity of the vestee
and the execution and delivery of the transfer documentation in form and
substance reasonably acceptable to Lender and (h) Borrower pays all reasonable
expenses incurred by Lender in connection with such transfer, including,
without limitation, Lender's reasonable attorneys fees and expenses, all
recording fees, and all fees payable to the Title Company for the delivery to
Lender of the endorsement referred to in clause (g) above;
(viii) sales by a Borrower (the "TIC Transferor Borrower") of its
co-tenancy interest in the Property (the "TIC Transfer") to another party (the
"TIC Transferee Borrower"), provided that prior to such sale (a) TIC
Transferor Borrower shall pay to Lender a transfer fee in the amount of one
percent (1%) of the Principal Indebtedness multiplied by the TIC Interest of
the TIC Transferor Borrower (but in all events such fee shall not be less than
$2,500 or greater than $10,000, (b) Lender shall consent to such transfer
(such consent to not be unreasonably withheld, conditioned or delayed by
Lender), (c) after a Secondary Market Transaction, TIC Transferor Borrower
shall deliver (or cause to be delivered) to Lender a Rating Agency
Confirmation with respect to such transfer, provided, however, such Rating
Agency Confirmation shall not be required for any TIC Transfer of a TIC
Interest of less than five percent (5%), (d) the identity, experience (with
respect to a TIC Transfer by a Sponsor Borrower), financial condition,
creditworthiness, single purpose nature and bankruptcy remoteness of the TIC
Transferee Borrower and the replacement guarantors and indemnitors shall be
satisfactory to Lender in Lender's reasonable discretion, (e) TIC Transferor
Borrower, TIC Transferee Borrower, the Guarantor of TIC Transferor Borrower
and the replacement guarantors and indemnitors shall execute and deliver any
and all documentation to effectuate the transfer as may be required by Lender
or the Rating Agencies, in form and substance satisfactory to Lender or the
Rating Agencies in Lender's or the Rating Agencies' discretion, as applicable
(which documents in any event shall provide for a release of the TIC
Transferor Borrower (and its related Guarantor) from all liability under the
Loan for act or events first occurring after the effective date of the
Transfer), including, without limitation, an assumption by TIC Transferee
Borrower of the TIC Agreement, (f) counsel to TIC Transferee Borrower and the
replacement guarantors and indemnitors shall deliver to Lender and the Rating
Agencies, if required by the magnitude of such transfer, opinion letters
relating to such transfer (including, without limitation, tax, bankruptcy and
REMIC opinions) in form and substance satisfactory to Lender and the Rating
Agencies in Lender's and the Rating Agencies' discretion, as applicable, (g)
TIC Transferor Borrower shall deliver (or cause to be delivered) to Lender, an
endorsement to the
-33-
Title Insurance Policy relating to the change in the identity of the vestee
and the execution and delivery of the transfer documentation in form and
substance reasonably acceptable to Lender and (h) TIC Transferor Borrower pays
all reasonable expenses incurred by Lender in connection with such transfer,
including, without limitation, Lender's reasonable attorneys fees and
expenses, all recording fees, and all fees payable to the Title Company for
the delivery to Lender of the endorsement referred to in clause (g) above.
Notwithstanding the foregoing, (i) no TIC Transfer shall occur prior to the
earlier to occur of (y) six months from the Closing Date, and (z) the closing
of a Secondary Market Transaction, (ii) there shall be no more than
seventy-five (75) separate Borrowers at any time; and (iii) no TIC Transfer
shall result in any Borrower, together with its Affiliates and immediate
family members of Affiliates, or Affiliates thereof, owning in the aggregate,
directly or indirectly (whether by means of beneficial ownership or ownership
of interests in entities which in turn directly or indirectly, through
multiple ownership tiers or otherwise, own interests in Borrower or
otherwise), more than a forty-nine percent (49%) of all co-tenancy interests
in the Property;
(ix) any transfer of a direct or indirect legal or beneficial
ownership interest in a Borrower that occurs by devise or bequest or by
operation of law upon the death of a natural person that was the holder of
such interest to the lineal descendants or other beneficiaries of such
interest holder or occurs by virtue of an inter vivos transfer or gift to a
trust or other legitimate estate planning vehicle established for the benefit
of such immediate family member, provided that (A) Manager continues to be
responsible for the management of the Property, and such transfer shall not
result in a change of the day to day operations of the Property, (B) the
affected Borrower shall remain a Single-Purpose Entity, (C) if such transfer
would result in a change of control of such Borrower and occurs before a
Secondary Market Transaction, Lender shall consent to such transfer within
thirty (30) days after such transfer, and (D) if such transfer would result in
a change of control of such Borrower and occurs after a Secondary Market
Transaction, such Borrower, at such Borrower's sole cost and expense, shall,
within thirty (30) days after such transfer, (a) deliver (or cause to be
delivered) to Lender a Rating Agency Confirmation with respect to such
transfer, and opinion letters relating to such transfer (including, without
limitation, tax, bankruptcy and REMIC opinions) in form and substance
satisfactory to Lender and the Rating Agencies in their discretion,
respectively, (b) obtain the prior written consent of Lender to such transfer
(which consent shall not be unreasonably withheld, conditioned or delayed) and
(c) reimburse Lender for all reasonable expenses incurred by Lender in
connection with such transfer; and
(x) any TIC Transfer made pursuant to an option granted in the TIC
Agreement or the operating agreement of any Borrower provided that the TIC
Transferee Borrower is another Borrower existing at the time of the TIC
Transfer (or a Single-Purpose Entity controlled by the Sponsor formed for the
purpose of participating in the referenced TIC Transfer and who becomes a
Borrower)(herein referred to as a "Forced TIC Sale"); provided that prior to
such Forced TIC Sale: (a) TIC Transferee Borrower and a replacement guarantor
affiliated therewith shall execute and deliver any and all documentation to
effectuate the transfer as may be required by Lender or the Rating Agencies,
in form and substance satisfactory to Lender or the Rating Agencies in
Lender's or the Rating Agencies' discretion, as applicable (which documents,
provided the TIC Transferor Borrower is not then in default under the TIC
Agreement, shall provide for a release the TIC Transferor Borrower (and its
related Guarantor)
-34-
from all liability under the Loan for act or events first occurring after the
effective date of the Transfer), (b) counsel to TIC Transferee Borrower and
the replacement guarantors and indemnitors shall deliver to Lender and the
Rating Agencies opinion letters relating to such transfer (including, without
limitation, tax, bankruptcy and REMIC opinions) in form and substance
satisfactory to Lender and the Rating Agencies in Lender's and the Rating
Agencies' discretion, as applicable, (c) TIC Transferor Borrower shall deliver
(or cause to be delivered) to Lender, an endorsement to the Title Insurance
Policy relating to the change in the identity of the vestee and the execution
and delivery of the transfer documentation in form and substance reasonably
acceptable to Lender and (d) TIC Transferee Borrower pays all reasonable
expenses incurred by Lender in connection with such transfer, including,
without limitation, Lender's reasonable attorneys fees and expenses, all
recording fees, and all fees payable to the Title Company for the delivery to
Lender of the endorsement referred to in clause (c) above. Notwithstanding the
foregoing, (i) there shall be no more than seventy-five (75) separate
Borrowers at any time; and (ii) there shall be no separate assumption fee,
administrative fee, underwriting fee or other transfer fee charged by Lender
in connection with a Forced TIC Sale.
Annex B (to Schedule I)
Mortgaged Properties as to Which the Only Environmental Investigations
Conducted in Connection with the Origination of the Related Mortgage Loan
Were With Respect to Asbestos-Containing Materials and Lead-Based Paint.
(Representation 12)
[None.]
Annex C (to Schedule I)
Mortgage Loans Covered By Secured Creditor Impaired Property
Environmental Insurance Policies
(Representations 12 and 49)
[None.]
SCHEDULE II
Mortgage Loan Schedule
[Attached]
SCHEDULE II (COUNTRYWIDE MLPA)
Loan Level
Property Level
Mortgage
Loan Property
Loan # Property Name Seller Type Address
4 ACP Woodland Park I CRF Office Various
4.01 Plaza Ridge II CRF Office 2250 Corporate Park Drive
4.02 South Pointe II CRF Office 0000 Xxxxxxxxx Xxxx Xxxxx
4.03 South Pointe I CRF Office 2350 Corporate Park Drive
6 HSA Industrial Portfolio I CRF Industrial Various
6.01 EGL Eagle Global Logistics CRF Industrial 0000 Xxxxxx-Xxxxxxxxx Xxxx
6.02 Xxxxxxx Sales Company Xxxxxxxxx XXX Xxxxxxxxxx 0000-0000 and 0000 Xxxxxxxx Xxxxx
6.03 The Gap, Inc. Building CRF Industrial 0000 Xxxxxxx Xxxxx
6.04 Eagle USA Airfreight, Inc. CRF Industrial 0000 Xxxx Xxxx
6.05 MBM Foods Building CRF Industrial 0000 Xxxxxxxxx Xxxxx
6.06 Hammacher Xxxxxxxxx & Co. CRF Industrial 0000 XxXxxxx Xxxxx
6.07 Sears Logistics Services, Inc. CRF Industrial 0000 Xxxxxxxxxxxx Xxxx
6.08 Georgesville Commerce Center Building CRF Industrial 0000 Xxxxxxxxxxxx Xxxx
6.09 Sears Logistics Services, Inc. CRF Industrial 0000 Xxxxxxxxxxxx Xxxx
10 Xxxxxxx Place Shopping Center CRF Retail 1435 - 0000 Xxxx Xxxxxxx Xxxxxx
11 Xxxxxxxxxx Portfolio IIB CRF Hospitality Various
11.01 Homewood Suites by Hilton - Grapevine CRF Hospitality 0000 Xxxxxxxxx Xxxxx Xxxxxx
11.02 Residence Inn by Marriott - Houston CRF Hospitality 000 Xxxxx Xxx Xxxxxxx Xxxx
11.03 Courtyard by Marriott - Houston CRF Hospitality 00000 Xxxxxxxxxx Xxxxx
11.04 Hampton Inn - Rancho Xxxxxxx CRF Hospitality 00000 Xxxx Xxxxxx Xxxxx
11.05 Niles Fairfield Inn - Xxxxxx CRF Hospitality 0000 Xxxxx-Xxxxxxxx Xxxx XX
11.06 Residence Inn by Marriott - Independence CRF Hospitality 0000 Xxxxx Xxxxxxxxx Xxxxxx
11.07 Residence Inn by Marriott - Bloomingdale CRF Hospitality 000 Xxxxxxxxx Xxxxx
11.08 Courtyard by Marriot - Bloomingdale CRF Hospitality 000 Xxxxxxxxx Xxxxx
11.09 Fairfield Inn and Suites - Kansas City CRF Hospitality 0000 Xxxxx Xxxxxxxxxx Xxxxxx
11.10 Fairfield Inn by Marriott - Independence CRF Hospitality 00000 Xxxx 00xx Xxxxxxx
14 West Valley Medical CRF Office 5353,5359,5363 Xxxxxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxxxxxx XXX CRF Hospitality Various
16.01 Fairfield Inn by Marriott - Roseville CRF Hospitality 0000 Xxxxxx Xxxxxx Xxxxx
16.02 Homewood Suites by Hilton - Dallas CRF Hospitality 0000 Xxxxxxxxx Xxxxx
16.03 Hampton Inn - Shawnee CRF Hospitality 0000 Xxxxx Xxxxxxxx Xxxxxx
16.04 Fairfield Inn - Cheyenne CRF Hospitality 0000 Xxxxxxxxxx Xxxxxx
16.05 Springhill Suites by Marriott - Phoenix CRF Hospitality 9425 North Black Canyon Highway
16.06 Fairfield Inn and Suites - Naperville CRF Hospitality 0000 Xxxx Xxxxx Xxxx
16.07 Hawthorne Suites - Naperville CRF Hospitality 0000 Xxxx Xxxxx Xxxx
16.08 TownePlace Suites - Phoenix CRF Hospitality 9425 North Black Canyon Highway
16.09 Fairfield Inn - Racine CRF Hospitality 0000 Xxxxxxxxxx Xxxxxx
16.10 Xxxxx Xxx - Xxxxxxxx XXX Xxxxxxxxxxx 0000 Xxxx Xxxx
16.11 Leased Fee Interest - Bloomingdale Courtyard CRF Hospitality 000 Xxxxxxxxx Xxxxx
16.12 Leased Fee Interest - Bloomingdale Residence Inn CRF Hospitality 000 Xxxxxxxxx Xxxxx
16.13 Leased Fee Interest - Kansas City Fairfield Inn CRF Hospitality 0000 Xxxxx Xxxxxxxxxx Xxxxxx
21 Holy Cross Medical Center CRF Office 00000 Xxxxxx Xxxx Xxxx
27 First National Bank of Arizona Headquarters CRF Office 00000 Xxxxx Xxxxxxxxx Xxxxx
28 Dulles Creek CRF Office 00000 Xxxxxxxxxx Xxxx
29 Tuscany at XxXxxxxxx Ranch CRF Multifamily 0000 Xxxx Xxx Xxxxxx Xxxxx
30 Home Depot CRF Retail 000 Xxxx 000xx Xxxxxx
52 Arcadia Del Sol CRF Multifamily 0000 Xxxx Xxxxxx Xxxxxx Xxxx
54 Casa Grande Center CRF Retail 0000-0000 Xxxx Xxxxxxxx Xxxxxxxxx
55 Boulder Palms Apartments CRF Multifamily 0000 Xxxxxxx Xxxxxxx
56 Xxxx and Buster's CRF Retail 0000 Xxxxxx Xxx Xxx Xxxxx
59 316 Courtland Avenue CRF Industrial 000 Xxxxxxxxx Xxxxxx
60 San Xxxxx Medical Center CRF Office 0000 Xxxx Xxxxx Xxxxxx
63 Tamarack Apartments CRF Multifamily 0000 Xxxx Xxxxx Xxxx'x Xxxx
66 Xxxxxx Xxxxx Center CRF Retail 0000 Xxxxx Xxxxxx Xxxx
71 Xxxxxx Office Center CRF Office 0000 Xxxxxx Xxxxxx
73 Corners Apartments CRF Multifamily 7878 Xxxxxx D Love Freeway
77 Center Medical Building CRF Xxxxxx 0000 Xxxxxx Xxxxxx
00 00 Xxxx Xxxxxxx - Xxxxxxxxx, XX CRF Retail 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx
89 CVS - Homosassa CRF Retail 0000 Xxxxx Xxxxxxxx Xxxxxxx
90 Xxxxx Village Center CRF Mixed Use 23226-23254 Xxxxx Avenue
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx XXX Industrial 000-00 Xxxxx 00xx Xxxxxx
94 Auburn Business Center CRF Industrial 2015, 2025 & 2043 Xxxxxxx Xxxxx
00 Xxxxxx Xxxxxx Xxxx Homes CRF Multifamily 0000 Xxxx Xxxxxx X0
000 00 Xxxx Xxxxxxx - Xxxxxxxx, XX CRF Retail 000 Xxxx Xxxxxxxxxx Xxxxx
Loan # Property Name City County State
4 ACP Woodland Park I Herndon Fairfax VA
0.00 Xxxxx Xxxxx XX Xxxxxxx Xxxxxxx XX
4.02 South Pointe II Herndon Fairfax VA
4.03 South Pointe I Herndon Fairfax VA
6 HSA Industrial Portfolio I Various Various Various
6.01 EGL Eagle Global Logistics Groveport Franklin OH
6.02 Kellogg Sales Company Buildings Columbus Franklin OH
6.03 The Gap, Inc. Building Hebron Xxxxx KY
6.04 Eagle USA Airfreight, Inc. Groveport Franklin OH
6.05 MBM Foods Building Columbus Franklin OH
6.06 Hammacher Xxxxxxxxx & Co. Fairfield Xxxxxx OH
6.07 Sears Logistics Services, Inc. Columbus Franklin OH
6.08 Xxxxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxxxx XX
6.09 Sears Logistics Services, Inc. Columbus Franklin OH
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Xxxx XX
11 Xxxxxxxxxx Portfolio IIB Various Various Various
11.01 Homewood Suites by Hilton - Grapevine Grapevine Tarrant TX
11.02 Residence Inn by Marriott - Houston Houston Xxxxxx TX
11.03 Courtyard by Marriott - Houston Houston Xxxxxx TX
11.04 Hampton Inn - Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx XX
11.05 Niles Fairfield Inn - Xxxxxx Xxxxxx Xxxxxxxx OH
11.06 Residence Inn by Marriott - Independence Independence Jackson MO
11.07 Residence Inn by Marriott - Bloomingdale Bloomingdale DuPage IL
11.08 Courtyard by Marriot - Bloomingdale Bloomingdale DuPage IL
11.09 Fairfield Inn and Suites - Kansas City Kansas City Clay MO
11.10 Fairfield Inn by Marriott - Independence Independence Jackson MO
00 Xxxx Xxxxxx Xxxxxxx Xxxxxx Xxx Xxxxxxx XX
16 Xxxxxxxxxx Portfolio IIA Various Various Various
16.01 Fairfield Inn by Marriott - Roseville Roseville Ramsey MN
16.02 Homewood Suites by Hilton - Dallas Dallas Dallas TX
16.03 Hampton Inn - Shawnee Shawnee Pottawatomie OK
16.04 Fairfield Inn - Cheyenne Cheyenne Laramie WY
16.05 Springhill Suites by Marriott - Phoenix Phoenix Maricopa AZ
16.06 Fairfield Inn and Suites - Naperville Naperville DuPage IL
16.07 Hawthorne Suites - Naperville Naperville DuPage IL
16.08 TownePlace Suites - Phoenix Phoenix Maricopa AZ
16.09 Fairfield Inn - Racine Town of Mount Pleasant Racine WI
16.10 Sleep Inn - Missoula Missoula Missoula MT
16.11 Leased Fee Interest - Bloomingdale Courtyard Bloomingdale DuPage IL
16.12 Leased Fee Interest - Bloomingdale Residence Inn Bloomingdale DuPage IL
16.13 Leased Fee Interest - Kansas City Fairfield Inn Kansas City Clay MO
21 Holy Cross Medical Center Mission Hills Los Angeles CA
27 First National Bank of Arizona Headquarters Scottsdale Maricopa AZ
00 Xxxxxx Xxxxx Xxxxxxx Xxxxxxx VA
29 Tuscany at XxXxxxxxx Ranch Scottsdale Maricopa AZ
30 Home Depot Gardena Los Angeles CA
00 Xxxxxxx Xxx Xxx Xxxxxxx Xxxxxxxx XX
54 Casa Grande Center Casa Grande Pinal AZ
00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxx Xxxxx Xxxxx NV
56 Xxxx and Buster's San Diego San Diego CA
59 000 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx XX
60 San Xxxxx Medical Center San Xxxxx Los Angeles CA
00 Xxxxxxxx Xxxxxxxxxx Xxxxxx Xxxx XX
00 Xxxxxx Xxxxx Xxxxxx Xxxx Xxxxxxxx XX
71 Corbin Office Center Tarzana Los Angeles CA
00 Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxx XX
77 Center Medical Building Huntington Beach Orange CA
81 24 Hour Fitness - Henderson, NV Xxxxxxxxx Xxxxx NV
89 CVS - Homosassa Homosassa Citrus FL
00 Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxx Xxxxxxx XX
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX
00 Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxx XX
99 Desert Colony Town Homes Lancaster Los Angeles CA
104 24 Hour Fitness - Monrovia, CA Monrovia Los Angeles CA
Cutoff Balance Original
Loan # Property Name Zip Code (6/1/2005) Xxxxxxx
0 XXX Xxxxxxxx Xxxx X 00000 88,500,000.00 88,500,000.00
4.01 Xxxxx Xxxxx XX 00000 30,900,000.00 30,900,000.00
4.02 Xxxxx Xxxxxx XX 00000 30,200,000.00 30,200,000.00
4.03 Xxxxx Xxxxxx X 00000 27,400,000.00 27,400,000.00
6 HSA Industrial Portfolio I Various 63,000,000.00 63,000,000.00
6.01 EGL Eagle Global Logistics 43125 16,400,000.00 16,400,000.00
6.02 Kellogg Sales Company Buildings 43228 12,900,000.00 12,900,000.00
6.03 Xxx Xxx, Xxx. Xxxxxxxx 00000 7,600,000.00 7,600,000.00
6.04 Eagle USA Airfreight, Inc. 43125 7,100,000.00 7,100,000.00
6.05 MBM Foods Building 43228 7,075,000.00 7,075,000.00
6.06 Hammacher Xxxxxxxxx & Co. 45014 3,860,000.00 3,860,000.00
6.07 Sears Logistics Services, Inc. 43228 2,900,000.00 2,900,000.00
6.08 Xxxxxxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx 00000 2,625,000.00 2,625,000.00
6.09 Sears Logistics Services, Inc. 43228 2,540,000.00 2,540,000.00
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 00000 36,700,000.00 36,700,000.00
11 Xxxxxxxxxx Portfolio IIB Various 34,875,818.76 35,116,000.00
11.01 Homewood Suites by Xxxxxx - Xxxxxxxxx 00000 5,455,429.79 5,493,000.00
11.02 Residence Inn by Xxxxxxxx - Xxxxxxx 00000 5,397,826.49 5,435,000.00
11.03 Courtyard by Xxxxxxxx - Xxxxxxx 00000 4,386,789.25 4,417,000.00
11.04 Xxxxxxx Xxx - Xxxxxx Xxxxxxx 00000 3,824,660.50 3,851,000.00
11.05 Niles Xxxxxxxxx Xxx - Xxxxxx 00000 3,489,965.46 3,514,000.00
11.06 Residence Inn by Xxxxxxxx - Xxxxxxxxxxxx 00000 3,203,935.28 3,226,000.00
11.07 Residence Inn by Xxxxxxxx - Xxxxxxxxxxxx 00000 3,042,050.14 3,063,000.00
11.08 Courtyard by Xxxxxxx - Xxxxxxxxxxxx 00000 2,479,921.39 2,497,000.00
11.09 Xxxxxxxxx Xxx xxx Xxxxxx - Xxxxxx Xxxx 00000 2,078,684.61 2,093,000.00
11.10 Fairfield Inn by Xxxxxxxx - Xxxxxxxxxxxx 00000 1,516,555.85 1,527,000.00
00 Xxxx Xxxxxx Xxxxxxx 00000 28,000,000.00 28,000,000.00
16 Xxxxxxxxxx Portfolio IIA Various 22,727,481.39 22,884,000.00
16.01 Fairfield Inn by Xxxxxxxx - Xxxxxxxxx 00000 2,756,019.96 2,775,000.00
16.02 Homewood Suites by Xxxxxx - Xxxxxx 00000 2,756,019.96 2,775,000.00
16.03 Xxxxxxx Xxx - Xxxxxxx 00000 2,251,494.51 2,267,000.00
16.04 Xxxxxxxxx Xxx - Xxxxxxxx 00000 2,250,501.35 2,266,000.00
16.05 Springhill Suites by Xxxxxxxx - Xxxxxxx 00000 2,250,501.35 2,266,000.00
16.06 Xxxxxxxxx Xxx xxx Xxxxxx - Xxxxxxxxxx 00000 2,078,684.61 2,093,000.00
16.07 Xxxxxxxxx Xxxxxx - Xxxxxxxxxx 00000 2,078,684.61 2,093,000.00
16.08 XxxxxXxxxx Xxxxxx - Xxxxxxx 00000 1,916,799.47 1,930,000.00
16.09 Xxxxxxxxx Xxx - Xxxxxx 00000 1,411,280.85 1,421,000.00
16.10 Xxxxx Xxx - Xxxxxxxx 00000 1,239,464.11 1,248,000.00
16.11 Leased Fee Interest - Bloomingdale Courtyard 60108 705,143.85 710,000.00
16.12 Leased Fee Interest - Bloomingdale Residence Inn 60108 705,143.85 710,000.00
16.13 Leased Fee Interest - Kansas City Xxxxxxxxx Xxx 00000 327,742.91 330,000.00
00 Xxxx Xxxxx Xxxxxxx Xxxxxx 00000 17,800,000.00 17,800,000.00
00 Xxxxx Xxxxxxxx Xxxx xx Xxxxxxx Xxxxxxxxxxxx 00000 14,479,859.79 14,500,000.00
28 Xxxxxx Xxxxx 00000 14,200,000.00 14,200,000.00
00 Xxxxxxx xx XxXxxxxxx Xxxxx 00000 13,972,976.96 13,972,976.96
30 Home Depot 90248 13,472,201.40 13,500,000.00
00 Xxxxxxx Xxx Xxx 00000 9,350,000.00 9,350,000.00
00 Xxxx Xxxxxx Xxxxxx 00000 8,933,849.93 8,960,000.00
00 Xxxxxxx Xxxxx Xxxxxxxxxx 00000 8,600,000.00 8,600,000.00
56 Xxxx and Buster's 92108 8,325,000.00 8,325,000.00
59 000 Xxxxxxxxx Xxxxxx 0000 7,912,508.68 7,920,000.00
00 Xxx Xxxxx Xxxxxxx Xxxxxx 00000 7,700,000.00 7,700,000.00
63 Xxxxxxxx Xxxxxxxxxx 00000 7,450,000.00 7,450,000.00
66 Recker Xxxxx Center 85205 7,159,006.77 7,180,000.00
71 Xxxxxx Xxxxxx Xxxxxx 00000 5,794,778.69 5,800,000.00
00 Xxxxxxx Xxxxxxxxxx 00000 5,748,392.13 5,760,000.00
00 Xxxxxx Xxxxxxx Xxxxxxxx 00000 5,500,000.00 5,500,000.00
81 24 Hour Fitness - Xxxxxxxxx, XX 00000 4,750,000.00 4,750,000.00
89 CVS - Homosassa 34448 4,231,000.00 4,231,000.00
00 Xxxxx Xxxxxxx Xxxxxx 00000 4,195,568.76 4,200,000.00
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 00000 4,000,000.00 4,000,000.00
94 Xxxxxx Xxxxxxxx Xxxxxx 00000 3,738,880.46 3,750,000.00
00 Xxxxxx Xxxxxx Xxxx Xxxxx 00000 2,997,333.41 3,000,000.00
104 24 Hour Fitness - Xxxxxxxx, XX 00000 2,700,000.00 2,700,000.00
IO Monthly IO Annual Debt Monthly P&I Annual P&I
Loan # Property Name Debt Service Service Debt Service Debt Service
4 ACP Woodland Park I 435,934.20 5,231,210.42 520,968.39 6,251,620.68
4.01 Xxxxx Xxxxx XX
0.00 Xxxxx Xxxxxx XX
0.00 Xxxxx Xxxxxx I
6 HSA Industrial Portfolio I 300,478.65 3,605,743.75 363,459.45 4,361,513.40
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Shopping Center 174,575.61 2,094,907.36 211,381.77 2,536,581.24
11 Xxxxxxxxxx Portfolio IIB 236,391.77 2,836,701.24
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical 131,535.19 1,578,422.22 160,036.57 1,920,438.84
16 Xxxxxxxxxx Portfolio IIA 154,049.13 1,848,589.56
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center 85,874.70 1,030,496.39 103,424.10 1,241,089.20
27 First National Bank of Arizona Headquarters 89,562.99 1,074,755.88
28 Dulles Creek 65,747.32 788,967.78 80,447.94 965,375.28
29 Tuscany at XxXxxxxxx Ranch 84,314.83 1,011,777.96
30 Home Depot 76,313.05 915,756.60
52 Arcadia Del Sol 43,370.37 520,444.38 53,029.62 636,355.44
54 Casa Grande Center 51,493.99 617,927.88
00 Xxxxxxx Xxxxx Apartments 42,943.26 515,319.17 51,064.78 612,777.36
56 Xxxx and Buster's 47,007.60 564,091.20
59 000 Xxxxxxxxx Xxxxxx 44,881.97 538,583.64
60 San Xxxxx Medical Center 36,692.64 440,311.67 44,398.49 532,781.88
63 Tamarack Apartments 33,990.63 407,887.50 41,834.04 502,008.48
66 Xxxxxx Xxxxx Center 41,227.93 494,735.16
71 Xxxxxx Office Center 33,589.75 403,077.00
73 Corners Apartments 32,921.81 395,061.72
77 Center Medical Building 31,193.90 374,326.80
81 24 Hour Fitness - Henderson, NV 26,821.16 321,853.92
89 CVS - Homosassa 19,375.43 232,505.20 23,811.22 285,734.64
00 Xxxxx Xxxxxxx Xxxxxx 25,046.24 300,554.88
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 25,236.82 302,841.84
94 Auburn Business Center 21,386.29 256,635.48
99 Desert Colony Town Homes 17,469.09 209,629.08
104 24 Hour Fitness - Monrovia, CA 15,245.71 182,948.52
Primary Master Trustee &
Interest Servicing Servicing Paying Broker
Loan # Property Name Rate (%) Fee Rate Fee Rate Agent Fee Strip Rate
4 ACP Woodland Park I 5.8300 0.02000 0.01000 0.00130
4.01 Xxxxx Xxxxx XX
0.00 Xxxxx Xxxxxx XX
0.00 Xxxxx Xxxxxx I
6 HSA Industrial Portfolio I 5.6450 0.02000 0.01000 0.00130
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 5.6300 0.02000 0.01000 0.00130
11 Xxxxxxxxxx Portfolio IIB 5.2380 0.02000 0.01000 0.00130
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical 5.5600 0.02000 0.01000 0.00130
16 Xxxxxxxxxx Portfolio IIA 5.2380 0.02000 0.01000 0.00130
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center 5.7100 0.02000 0.01000 0.00130
27 First National Bank of Arizona Headquarters 5.5600 0.02000 0.01000 0.00130
28 Dulles Creek 5.4800 0.02000 0.01000 0.00130
29 Tuscany at XxXxxxxxx Ranch 6.0600 0.02000 0.01000 0.00130
30 Home Depot 5.4600 0.02000 0.01000 0.00130
52 Arcadia Del Sol 5.4900 0.02000 0.01000 0.00130
54 Casa Grande Center 5.6100 0.02000 0.01000 0.00130
00 Xxxxxxx Xxxxx Xxxxxxxxxx 0.0000 0.02000 0.01000 0.00130
56 Xxxx and Buster's 5.4500 0.02000 0.01000 0.00130
59 000 Xxxxxxxxx Xxxxxx 0.0000 0.02000 0.01000 0.00130
60 San Xxxxx Medical Center 5.6400 0.02000 0.01000 0.00130
63 Tamarack Apartments 5.4000 0.02000 0.01000 0.00130
66 Xxxxxx Xxxxx Center 5.6020 0.02000 0.01000 0.00130
71 Xxxxxx Office Center 5.6800 0.02000 0.01000 0.00130
73 Corners Apartments 5.5600 0.02000 0.01000 0.00130
77 Center Medical Building 5.4900 0.02000 0.01000 0.00130
81 00 Xxxx Xxxxxxx - Xxxxxxxxx, XX 5.4500 0.02000 0.01000 0.00130
89 CVS - Homosassa 5.4200 0.02000 0.01000 0.00130
00 Xxxxx Xxxxxxx Xxxxxx 0.0000 0.02000 0.01000 0.00130
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 0.0000 0.02000 0.01000 0.00130
94 Auburn Business Center 5.5400 0.02000 0.01000 0.00130
00 Xxxxxx Xxxxxx Xxxx Homes 5.7300 0.02000 0.01000 0.00130
000 00 Xxxx Xxxxxxx - Xxxxxxxx, XX 5.4500 0.02000 0.01000 0.00130
Net
Mortgage
Admin. Interest Accrual Remaining
Loan # Property Name Fee Rate Type Term Term
4 ACP Woodland Park I 0.03130 5.7987 Actual/360 120 120
4.01 Plaza Ridge II 120
4.02 South Pointe II 120
4.03 South Pointe I 120
6 HSA Industrial Portfolio I 0.03130 5.6137 Actual/360 120 120
6.01 EGL Eagle Global Logistics 120
6.02 Kellogg Sales Company Buildings 120
6.03 The Gap, Inc. Building 120
6.04 Eagle USA Airfreight, Inc. 120
6.05 MBM Foods Building 120
6.06 Hammacher Xxxxxxxxx & Co. 120
6.07 Sears Logistics Services, Inc. 120
6.08 Georgesville Commerce Center Building 120
6.09 Sears Logistics Services, Inc. 120
00 Xxxxxxx Xxxxx Shopping Center 0.03130 5.5987 Actual/360 120 119
11 Xxxxxxxxxx Portfolio IIB 0.03130 5.2067 Actual/360 120 117
11.01 Homewood Suites by Hilton - Grapevine 117
11.02 Residence Inn by Xxxxxxxx - Xxxxxxx 000
11.03 Courtyard by Xxxxxxxx - Xxxxxxx 000
11.04 Hampton Inn - Rancho Xxxxxxx 117
11.05 Niles Fairfield Inn - Xxxxxx 117
11.06 Residence Inn by Marriott - Independence 117
11.07 Residence Inn by Marriott - Bloomingdale 117
11.08 Courtyard by Marriot - Bloomingdale 117
11.09 Fairfield Inn and Suites - Kansas City 117
11.10 Fairfield Inn by Marriott - Independence 117
14 West Valley Medical 0.03130 5.5287 Actual/360 120 120
16 Xxxxxxxxxx Portfolio IIA 0.03130 5.2067 Actual/360 120 117
16.01 Fairfield Inn by Xxxxxxxx - Xxxxxxxxx 000
16.02 Homewood Suites by Hilton - Dallas 117
16.03 Hampton Inn - Shawnee 117
16.04 Fairfield Inn - Cheyenne 117
16.05 Springhill Suites by Marriott - Phoenix 117
16.06 Fairfield Inn and Suites - Naperville 117
16.07 Hawthorne Suites - Naperville 117
16.08 TownePlace Suites - Phoenix 117
16.09 Fairfield Inn - Racine 117
16.10 Sleep Inn - Missoula 117
16.11 Leased Fee Interest - Bloomingdale Courtyard 117
16.12 Leased Fee Interest - Bloomingdale Residence Inn 117
16.13 Leased Fee Interest - Kansas City Fairfield Inn 117
21 Holy Cross Medical Center 0.03130 5.6787 Actual/360 120 118
27 First National Bank of Arizona Headquarters 0.03130 5.5287 Actual/360 120 119
28 Dulles Creek 0.03130 5.4487 Actual/360 60 58
29 Tuscany at XxXxxxxxx Ranch 0.03130 6.0287 Actual/360 117 117
30 Home Depot 0.03130 5.4287 Actual/360 84 82
52 Arcadia Del Sol 0.03130 5.4587 Actual/360 120 119
54 Casa Grande Center 0.03130 5.5787 Actual/360 120 117
55 Boulder Palms Apartments 0.03130 5.8787 Actual/360 120 118
56 Xxxx and Buster's 0.03130 5.4187 Actual/360 120 120
59 316 Courtland Avenue 0.03130 5.4512 Actual/360 120 119
60 San Xxxxx Medical Center 0.03130 5.6087 Actual/360 120 118
63 Tamarack Apartments 0.03130 5.3687 Actual/360 120 118
66 Xxxxxx Xxxxx Center 0.03130 5.5707 Actual/360 120 117
71 Xxxxxx Office Center 0.03130 5.6487 Actual/360 120 119
73 Corners Apartments 0.03130 5.5287 Actual/360 120 118
77 Center Medical Building 0.03130 5.4587 Actual/360 120 120
81 24 Hour Fitness - Henderson, NV 0.03130 5.4187 Actual/360 120 120
89 CVS - Homosassa 0.03130 5.3887 Actual/360 120 118
90 Xxxxx Village Center 0.03130 5.6687 Actual/360 120 119
92 Bridgeworks Industrial Center 0.03130 5.7487 Actual/360 120 120
94 Auburn Business Center 0.03130 5.5087 Actual/360 120 117
99 Desert Colony Town Homes 0.03130 5.6987 Actual/360 120 119
104 24 Hour Fitness - Monrovia, CA 0.03130 5.4187 Actual/360 120 120
Remaining
Maturity/ Amort Amort
Loan # Property Name ARD Date Term Term Title Type ARD (Y/N)
0 XXX Xxxxxxxx Xxxx I 6/8/2015 360 360 Fee No
4.01 Plaza Ridge II Fee No
4.02 South Pointe II Fee No
4.03 South Pointe I Fee No
6 HSA Industrial Portfolio I 6/8/2015 360 360 Fee No
6.01 EGL Eagle Global Logistics Fee No
6.02 Kellogg Sales Company Buildings Fee No
6.03 The Gap, Inc. Building Fee No
6.04 Eagle USA Airfreight, Inc. Fee No
6.05 MBM Foods Building Fee No
6.06 Hammacher Xxxxxxxxx & Co. Fee No
6.07 Sears Logistics Services, Inc. Fee No
6.08 Georgesville Commerce Center Building Fee No
6.09 Sears Logistics Services, Inc. Fee Xx
00 Xxxxxxx Xxxxx Shopping Center 5/8/2015 360 360 Fee No
11 Xxxxxxxxxx Portfolio IIB 3/8/2015 240 237 Various No
11.01 Homewood Suites by Hilton - Grapevine Fee No
11.02 Residence Inn by Marriott - Houston Fee No
11.03 Courtyard by Marriott - Houston Fee No
11.04 Hampton Inn - Rancho Xxxxxxx Fee No
11.05 Niles Fairfield Inn - Xxxxxx Fee No
11.06 Residence Inn by Marriott - Independence Fee No
11.07 Residence Inn by Marriott - Bloomingdale Leasehold No
11.08 Courtyard by Marriot - Bloomingdale Leasehold Xx
00.00 Xxxxxxxxx Xxx xxx Xxxxxx - Xxxxxx Xxxx Leasehold No
11.10 Fairfield Inn by Marriott - Independence Fee No
14 West Valley Medical 6/8/2015 360 360 Fee No
16 Xxxxxxxxxx Portfolio IIA 3/8/2015 240 237 Fee No
16.01 Fairfield Inn by Marriott - Roseville Fee No
16.02 Homewood Suites by Hilton - Dallas Fee No
16.03 Hampton Inn - Shawnee Fee No
16.04 Fairfield Inn - Cheyenne Fee No
16.05 Springhill Suites by Marriott - Phoenix Fee No
16.06 Fairfield Inn and Suites - Naperville Fee No
16.07 Hawthorne Suites - Naperville Fee No
16.08 TownePlace Suites - Phoenix Fee No
16.09 Fairfield Inn - Racine Fee No
16.10 Sleep Inn - Missoula Fee No
16.11 Leased Fee Interest - Bloomingdale Courtyard Fee No
16.12 Leased Fee Interest - Bloomingdale Residence Inn Fee No
16.13 Leased Fee Interest - Kansas City Fairfield Inn Fee No
21 Holy Cross Medical Center 4/8/2015 360 360 Fee No
27 First National Bank of Arizona Headquarters 5/8/2015 300 299 Fee No
28 Dulles Creek 4/8/2010 360 360 Fee Yes
29 Tuscany at XxXxxxxxx Ranch 3/8/2015 360 360 Fee No
30 Home Depot 4/8/2012 360 358 Fee No
52 Arcadia Del Sol 5/8/2015 360 360 Fee No
54 Casa Grande Center 3/8/2015 360 357 Fee No
55 Boulder Palms Apartments 4/8/2015 360 360 Fee No
56 Xxxx and Buster's 6/8/2015 360 360 Leasehold Yes
59 000 Xxxxxxxxx Xxxxxx 5/8/2015 360 359 Fee No
60 San Xxxxx Medical Center 4/8/2015 360 360 Fee No
63 Tamarack Apartments 4/8/2015 360 360 Fee No
66 Xxxxxx Xxxxx Center 3/8/2015 360 357 Fee No
71 Xxxxxx Office Center 5/8/2015 360 359 Fee No
73 Corners Apartments 4/8/2015 360 358 Fee No
77 Center Medical Building 6/8/2015 360 360 Fee No
81 24 Hour Fitness - Henderson, NV 6/8/2015 360 360 Fee Yes
89 CVS - Homosassa 4/8/2015 360 360 Fee No
90 Xxxxx Village Center 5/8/2015 336 335 Fee No
92 Bridgeworks Industrial Center 6/8/2015 300 300 Fee No
94 Auburn Business Center 3/8/2015 360 357 Fee No
99 Desert Colony Town Homes 5/8/2015 360 359 Fee No
104 24 Hour Fitness - Monrovia, CA 6/8/2015 360 360 Fee Yes
Loan # Property Name ARD Step Up (%)
0 XXX Xxxxxxxx Xxxx I
4.01 Plaza Ridge II
4.02 South Pointe II
4.03 South Pointe I
6 HSA Industrial Portfolio I
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Shopping Center
11 Xxxxxxxxxx Portfolio IIB
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical
16 Xxxxxxxxxx Portfolio IIA
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center
27 First National Bank of Arizona Headquarters
28 Dulles Creek Greater of: (i) Initial Note Rate plus 5.0% or (ii)
Treasury Rate plus 6.3%.
29 Tuscany at XxXxxxxxx Ranch
30 Home Depot
52 Arcadia Del Sol
54 Casa Grande Center
55 Boulder Palms Apartments
56 Xxxx and Buster's Greater of: (i) Initial Note Rate plus 5.0% or (ii)
Treasury Rate plus 6.25%.
59 000 Xxxxxxxxx Xxxxxx
60 San Xxxxx Medical Center
63 Tamarack Apartments
66 Xxxxxx Xxxxx Center
71 Xxxxxx Office Center
73 Corners Apartments
77 Center Medical Building
81 24 Hour Fitness - Henderson, NV Greater of: (i) Initial Note Rate plus 5.0% or (ii)
Treasury Rate plus 6.25%.
89 CVS - Homosassa
90 Xxxxx Village Center
92 Bridgeworks Industrial Center
94 Auburn Business Center
99 Desert Colony Town Homes
104 24 Hour Fitness - Monrovia, CA Greater of: (i) Initial Note Rate plus 5.0% or (ii)
Treasury Rate plus 6.25%.
Environmental
Environmental Insurance Cross- Cross-
Loan # Property Name Report Type (Y/N) Defaulted Collateralized
4 ACP Woodland Park I Phase I No
4.01 Plaza Ridge II Phase I No
4.02 South Pointe II Phase I No
4.03 South Pointe I Phase I No
6 HSA Industrial Portfolio I Phase I No
6.01 EGL Eagle Global Logistics Phase I No
6.02 Kellogg Sales Company Buildings Phase I No
6.03 The Gap, Inc. Building Phase I No
6.04 Eagle USA Airfreight, Inc. Phase I No
6.05 MBM Foods Building Phase I No
6.06 Hammacher Xxxxxxxxx & Co. Phase I No
6.07 Sears Logistics Services, Inc. Phase I No
6.08 Georgesville Commerce Center Building Phase I No
6.09 Sears Logistics Services, Inc. Phase I No
00 Xxxxxxx Xxxxx Shopping Center Phase I Xx
00 Xxxxxxxxxx Xxxxxxxxx XXX Xxxxx I No
11.01 Homewood Suites by Hilton - Grapevine Phase I No
11.02 Residence Inn by Marriott - Houston Phase I No
11.03 Courtyard by Marriott - Houston Phase I No
11.04 Hampton Inn - Rancho Xxxxxxx Phase I No
11.05 Niles Fairfield Inn - Xxxxxx Phase I No
11.06 Residence Inn by Marriott - Independence Phase I No
11.07 Residence Inn by Marriott - Bloomingdale Phase I No
11.08 Courtyard by Marriot - Bloomingdale Phase I No
11.09 Fairfield Inn and Suites - Kansas City Phase I No
11.10 Fairfield Inn by Marriott - Independence Phase I No
14 West Valley Medical Phase I No
16 Xxxxxxxxxx Portfolio IIA Phase I No
16.01 Fairfield Inn by Marriott - Roseville Phase I No
16.02 Homewood Suites by Hilton - Dallas Phase I No
16.03 Hampton Inn - Shawnee Phase I No
16.04 Fairfield Inn - Cheyenne Phase I No
16.05 Springhill Suites by Marriott - Phoenix Phase I No
16.06 Fairfield Inn and Suites - Naperville Phase I No
16.07 Hawthorne Suites - Naperville Phase I No
16.08 TownePlace Suites - Phoenix Phase I No
16.09 Fairfield Inn - Racine Phase I No
16.10 Sleep Inn - Missoula Phase I No
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center Phase I No
27 First National Bank of Arizona Headquarters Phase I No
28 Dulles Creek Phase I No
29 Tuscany at XxXxxxxxx Ranch Phase I No
30 Home Depot Phase I No
52 Arcadia Del Sol Phase I No
54 Casa Grande Center Phase I No
55 Boulder Palms Apartments Phase I No
56 Xxxx and Buster's Phase I No Yes Yes
59 000 Xxxxxxxxx Xxxxxx Phase I No
60 San Xxxxx Medical Center Phase I No
63 Tamarack Apartments Phase I No
66 Xxxxxx Xxxxx Center Phase I No
71 Xxxxxx Office Center Phase I No
73 Corners Apartments Phase I Xx
00 Xxxxxx Xxxxxxx Xxxxxxxx Xxxxx X No
81 24 Hour Fitness - Henderson, NV Phase I No Yes Yes
89 CVS - Homosassa Phase I Xx
00 Xxxxx Xxxxxxx Xxxxxx Xxxxx X No
92 Bridgeworks Industrial Center Phase I No
94 Auburn Business Center Phase I No
99 Desert Colony Town Homes Phase I No
104 24 Hour Fitness - Monrovia, CA Phase I No Yes Yes
Defeasance Letter of Lockbox Holdback
Loan # Property Name Allowed Credit In-place Amt
4 ACP Woodland Park I Yes No Yes Yes
4.01 Plaza Ridge II
4.02 South Pointe II
4.03 South Pointe I
6 HSA Industrial Portfolio I Yes No Yes No
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Yes Yes Yes No
11 Xxxxxxxxxx Portfolio IIB Yes No Yes No
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical Yes No Yes No
16 Xxxxxxxxxx Portfolio IIA Yes No Yes No
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center Yes No Yes No
27 First National Bank of Arizona Headquarters Yes No No
28 Dulles Creek Yes No Yes No
29 Tuscany at XxXxxxxxx Ranch Yes No Yes
30 Home Depot Yes No Yes No
52 Arcadia Del Sol Yes No No
54 Casa Grande Center Yes No Yes No
55 Boulder Palms Apartments Yes No Yes No
56 Xxxx and Buster's Yes No Yes No
59 316 Courtland Avenue Yes No Yes Yes
60 San Xxxxx Medical Center Yes No Yes No
63 Tamarack Apartments Yes No No
66 Xxxxxx Xxxxx Center Yes No Yes Yes
71 Xxxxxx Office Center Yes No No
73 Corners Apartments Yes No Yes No
77 Center Medical Building Yes No No
81 24 Hour Fitness - Henderson, NV Yes No Yes No
89 CVS - Homosassa Yes No No
90 Xxxxx Village Center Yes No No
92 Bridgeworks Industrial Center Yes No No
94 Auburn Business Center Yes No No
99 Desert Colony Town Homes Yes No No
104 24 Hour Fitness - Monrovia, CA Yes No Yes No
Upfront Upfront
Upfront Eng. CapEx Envir. Upfront TI/LC
Loan # Property Name Reserve Reserves Reserve Reserve
4 ACP Woodland Park I
4.01 Plaza Ridge II
4.02 South Pointe II
4.03 South Pointe I
6 HSA Industrial Portfolio I 940,000.00
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Shopping Center
11 Xxxxxxxxxx Portfolio IIB 188,000.07
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical 19,900.00
16 Xxxxxxxxxx Portfolio IIA 128,089.18
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center 13,688.00
27 First National Bank of Arizona Headquarters
28 Dulles Creek 200,000.00
29 Tuscany at XxXxxxxxx Ranch
30 Home Depot 400,000.00
52 Arcadia Del Sol 10,341.00
54 Casa Grande Center 3,750.00
00 Xxxxxxx Xxxxx Apartments 12,689.00
56 Xxxx and Buster's
59 000 Xxxxxxxxx Xxxxxx 4,937.50
00 Xxx Xxxxx Xxxxxxx Xxxxxx 36,293.75 81,968.75
63 Tamarack Apartments
66 Xxxxxx Xxxxx Center 2,187.50
71 Xxxxxx Office Center 137,500.00
73 Corners Apartments 3,081.00 5,062.50
77 Center Medical Building
81 24 Hour Fitness - Henderson, NV 12,303.75
89 CVS - Homosassa
90 Xxxxx Village Center 67,275.00
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 8,625.00
94 Auburn Business Center 500.00
99 Desert Colony Town Homes 36,813.00
104 24 Hour Fitness - Monrovia, CA 88,705.00
Upfront Upfront Upfront
Upfront RE Insurance Other Other
Loan # Property Name Tax Reserve Reserve Reserve Description
0 XXX Xxxxxxxx Xxxx I 373,759.78 52,904.58
4.01 Xxxxx Xxxxx XX
0.00 Xxxxx Xxxxxx XX
0.00 Xxxxx Xxxxxx I
6 HSA Industrial Portfolio I 218,850.00 Kellogg Rent Abatement
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Shopping Center 74,469.54 24,488.00
11 Xxxxxxxxxx Portfolio IIB 330,300.26 60,364.00 Ground Lease Reserve
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical 94,467.95
16 Xxxxxxxxxx Portfolio IIA 193,739.98
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center 35,769.00 25,041.71
27 First National Bank of Arizona Headquarters
28 Dulles Creek 59,222.33 5,790.25
29 Tuscany at XxXxxxxxx Ranch 7,932.00 10,202.00
30 Home Depot 4,861.00
52 Arcadia Del Sol 21,031.66 17,375.00
54 Casa Grande Center 12,437.00
00 Xxxxxxx Xxxxx Apartments 11,670.00 12,712.00
56 Xxxx and Buster's 22,070.00 Ground Lease Reserve
59 000 Xxxxxxxxx Xxxxxx 47,705.00 24,148.00
60 San Xxxxx Medical Center 19,945.47 4,470.64
63 Tamarack Apartments
66 Xxxxxx Xxxxx Center 3,844.00
71 Xxxxxx Office Center 30,800.00
73 Corners Apartments 43,377.00 16,272.00 10,081.00 Termite Remediation
77 Center Medical Building 29,718.72 5,001.16
81 24 Hour Fitness - Henderson, NV
89 CVS - Homosassa
90 Xxxxx Village Center 17,962.00 4,490.00
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 31,100.67 25,124.40
94 Auburn Business Center 4,534.72 2,337.31
99 Desert Colony Town Homes 10,171.00 3,130.00
104 24 Hour Fitness - Monrovia, CA
Monthly Monthly Monthly Monthly RE
Capex Envir. TI/LC Tax
Loan # Property Name Reserve Reserve Reserve Reserve
4 ACP Woodland Park I 3,993.05 35,138.84 62,293.30
4.01 Xxxxx Xxxxx XX
0.00 Xxxxx Xxxxxx XX
0.00 Xxxxx Xxxxxx I
6 HSA Industrial Portfolio I 40,113.58
6.01 EGL Eagle Global Logistics
6.02 Kellogg Sales Company Buildings
6.03 The Gap, Inc. Building
6.04 Eagle USA Airfreight, Inc.
6.05 MBM Foods Building
6.06 Hammacher Xxxxxxxxx & Co.
6.07 Sears Logistics Services, Inc.
6.08 Georgesville Commerce Center Building
6.09 Sears Logistics Services, Inc.
00 Xxxxxxx Xxxxx Shopping Center 414.67 74,469.54
11 Xxxxxxxxxx Portfolio IIB 76,208.97
11.01 Homewood Suites by Hilton - Grapevine
11.02 Residence Inn by Marriott - Houston
11.03 Courtyard by Marriott - Houston
11.04 Hampton Inn - Rancho Xxxxxxx
11.05 Niles Fairfield Inn - Xxxxxx
11.06 Residence Inn by Marriott - Independence
11.07 Residence Inn by Marriott - Bloomingdale
11.08 Courtyard by Marriot - Bloomingdale
11.09 Fairfield Inn and Suites - Kansas City
11.10 Fairfield Inn by Marriott - Independence
14 West Valley Medical 1,294.00 10,811.00 18,893.59
16 Xxxxxxxxxx Portfolio IIA 62,750.78
16.01 Fairfield Inn by Marriott - Roseville
16.02 Homewood Suites by Hilton - Dallas
16.03 Hampton Inn - Shawnee
16.04 Fairfield Inn - Cheyenne
16.05 Springhill Suites by Marriott - Phoenix
16.06 Fairfield Inn and Suites - Naperville
16.07 Hawthorne Suites - Naperville
16.08 TownePlace Suites - Phoenix
16.09 Fairfield Inn - Racine
16.10 Sleep Inn - Missoula
16.11 Leased Fee Interest - Bloomingdale Courtyard
16.12 Leased Fee Interest - Bloomingdale Residence Inn
16.13 Leased Fee Interest - Kansas City Fairfield Inn
21 Holy Cross Medical Center 1,536.00 9,523.00 11,923.00
27 First National Bank of Arizona Headquarters 2,142.00
28 Dulles Creek 729.68 14,805.58
29 Tuscany at XxXxxxxxx Ranch 1,521.00 7,932.00
30 Home Depot 1,875.00 5,000.00 1,620.00
52 Arcadia Del Sol 4,333.00 7,010.55
54 Casa Grande Center 1,873.00 4,691.00 12,437.00
00 Xxxxxxx Xxxxx Apartments 3,813.00 5,835.00
56 Xxxx and Buster's
59 000 Xxxxxxxxx Xxxxxx 1,455.90 3,979.46 9,541.00
00 Xxx Xxxxx Xxxxxxx Xxxxxx 1,029.56 6,648.49
63 Tamarack Apartments 5,062.50 10,309.58
66 Xxxxxx Xxxxx Center 887.42 2,218.54 3,844.00
71 Xxxxxx Office Center 820.00 4,100.00 7,700.00
73 Corners Apartments 5,062.50 14,459.00
77 Center Medical Building 7,429.68
81 24 Hour Fitness - Henderson, NV
89 CVS - Homosassa
90 Xxxxx Village Center 477.00 2,385.00 4,834.00
00 Xxxxxxxxxxx Xxxxxxxxxx Xxxxxx 4,400.00 3,178.42 4,450.00
00 Xxxxxx Xxxxxxxx Xxxxxx 530.00 2,650.00 2,267.36
99 Desert Colony Town Homes 750.00 2,543.00
104 24 Hour Fitness - Monrovia, CA
Monthly Monthly Other
Insurance Other Month Total Unit of Grace Loan
Loan # Property Name Reserve Reserve Description SF/Units Measure Period Group
0 XXX Xxxxxxxx Xxxx I 13,258.33 479,166 SF 0 1
4.01 Plaza Ridge II 158,888 SF 1
4.02 South Pointe II 159,737 SF 1
4.03 South Pointe I 160,541 SF 1
6 HSA Industrial Portfolio I 2,270,205 SF 0 1
6.01 EGL Eagle Global Logistics 509,190 SF 1
6.02 Kellogg Sales Company Buildings 505,040 SF 1
6.03 The Gap, Inc. Building 325,000 SF 1
6.04 Eagle USA Airfreight, Inc. 240,000 SF 1
6.05 MBM Foods Building 237,170 SF 1
6.06 Hammacher Xxxxxxxxx & Co. 124,880 SF 1
6.07 Sears Logistics Services, Inc. 120,000 SF 1
6.08 Georgesville Commerce Center Building 112,600 SF 1
6.09 Sears Logistics Services, Inc. 96,325 SF 1
00 Xxxxxxx Xxxxx Shopping Center 134,329 SF 0 1
11 Xxxxxxxxxx Portfolio IIB 853 Rooms 0 1
11.01 Homewood Suites by Hilton - Grapevine 105 Rooms 1
11.02 Residence Inn by Marriott - Houston 105 Rooms 1
11.03 Courtyard by Xxxxxxxx - Xxxxxxx 00 Xxxxx 0
11.04 Hampton Inn - Xxxxxx Xxxxxxx 00 Xxxxx 0
11.05 Niles Fairfield Inn - Xxxxxx 64 Rooms 1
11.06 Residence Inn by Xxxxxxxx - Xxxxxxxxxxxx 00 Xxxxx 0
11.07 Residence Inn by Xxxxxxxx - Xxxxxxxxxxxx 00 Xxxxx 0
11.08 Courtyard by Xxxxxxx - Xxxxxxxxxxxx 00 Xxxxx 0
11.09 Fairfield Inn and Suites - Kansas City 70 Rooms 1
11.10 Fairfield Inn by Marriott - Independence 63 Rooms 1
14 West Valley Medical 4,632.60 103,189 SF 0 1
16 Xxxxxxxxxx Portfolio IIA 709 Rooms 0 1
16.01 Fairfield Inn by Xxxxxxxx - Xxxxxxxxx 00 Xxxxx 0
16.02 Homewood Suites by Hilton - Dallas 78 Rooms 1
16.03 Hampton Inn - Shawnee 64 Rooms 1
16.04 Fairfield Inn - Cheyenne 62 Rooms 1
16.05 Springhill Suites by Marriott - Phoenix 81 Rooms 1
16.06 Fairfield Inn and Suites - Naperville 64 Rooms 1
16.07 Hawthorne Suites - Naperville 63 Rooms 1
16.08 TownePlace Suites - Phoenix 94 Rooms 1
16.09 Fairfield Inn - Racine 63 Rooms 1
16.10 Xxxxx Xxx - Xxxxxxxx 00 Xxxxx 0
16.11 Leased Fee Interest - Bloomingdale Courtyard 1
16.12 Leased Fee Interest - Bloomingdale Residence Inn 1
16.13 Leased Fee Interest - Kansas City Fairfield Inn 1
21 Holy Cross Medical Center 2,782.41 73,724 SF 0 1
27 First National Bank of Arizona Headquarters 128,502 SF 0 1
28 Dulles Creek 2,895.12 87,562 SF 0 1
29 Tuscany at XxXxxxxxx Ranch 5,101.00 73 Xxxxx 0 0
00 Xxxx Xxxxx 1,255.00 150,000 SF 0 1
52 Arcadia Del Sol 4,343.75 260 Xxxxx 0 0
00 Xxxx Xxxxxx Xxxxxx 1,921.00 93,812 SF 0 1
55 Boulder Palms Apartments 1,589.00 183 Units 0 1
56 Xxxx and Buster's 45,000 SF 0 1
59 000 Xxxxxxxxx Xxxxxx 2,081.08 116,472 SF 0 1
60 San Xxxxx Medical Center 1,490.21 61,760 SF 0 1
63 Tamarack Apartments 2,796.17 270 Xxxxx 0 0
00 Xxxxxx Xxxxx Xxxxxx 1,099.00 53,245 SF 0 1
71 Xxxxxx Office Center 821.00 49,205 SF 0 1
73 Corners Apartments 2,712.00 243 Xxxxx 0 0
00 Xxxxxx Xxxxxxx Xxxxxxxx 1,250.29 56,041 SF 0 1
81 24 Hour Fitness - Henderson, NV 26,000 SF 0 1
89 CVS - Homosassa 13,813 SF 0 1
90 Xxxxx Village Center 806.00 28,631 SF 0 1
92 Bridgeworks Industrial Center 2,093.70 264,000 SF 0 1
94 Auburn Business Center 776.36 42,400 SF 0 1
99 Desert Colony Town Homes 1,043.00 36 Units 0 2
104 24 Hour Fitness - Monrovia, CA 17,000 SF 0 1
