Exhibit 99.2
Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of August 1, 2003 between CITIGROUP GLOBAL MARKETS REALTY CORP. (the "Seller")
and WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit"
("REMIC") elections will be made with respect to most of the Trust Fund. The
Trust Fund will be created and the Certificates will be issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of the Cut-Off Date, among the Purchaser as depositor, Wachovia Bank,
National Association, as master servicer (in such capacity, the "Master
Servicer"), Lennar Partners, Inc., as special servicer (in such capacity, the
"Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"). Capitalized terms used but not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
Section 1. Agreement to Purchase.
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 $156,396,118 (the "Citigroup 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 Citigroup
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 $952,783,999 (subject to a variance of plus or minus
5.0%). The purchase and sale of the Mortgage Loans shall take place on August
27, 2003 or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Aggregate
Purchase Price") for the Mortgage Loans shall be equal to (i) 101.01% of the
Citigroup Mortgage Loan Balance as of the Cut-Off Date, plus (ii) $663,429,
which amount represents the amount of interest accrued on the Citigroup
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 Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
Section 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Aggregate Purchase Price and satisfaction of the other conditions to closing
that are for the benefit of the Seller, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser, without recourse
(except as set forth in this Agreement), all the right, title and interest of
the Seller in and to the Mortgage Loans identified on the Mortgage Loan
Schedule as of such date, on a servicing released basis, together with all of
the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-Off Date, and
all other recoveries of principal and interest collected after the Cut-Off
Date (other than in respect of principal and interest on the Mortgage Loans
due on or before the Cut-Off Date). All scheduled payments of principal and
interest due on or before the Cut-Off Date but collected after the Cut-Off
Date, and recoveries of principal and interest collected on or before the
Cut-Off Date (only in respect of principal and interest on the Mortgage Loans
due on or before the Cut-Off Date and principal prepayments thereon), shall
belong to, and shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All
Mortgage Files so delivered to the Trustee will be held by the Trustee in
escrow at all times prior to the Closing Date. Each Mortgage File shall
contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty,
express or implied) to the order of Xxxxx Fargo Bank Minnesota, N.A.,
as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2003-C6 or in blank (or a lost note affidavit and indemnity with a
copy of such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with
any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information), of (A) the Mortgage, (B) any
related Assignment of Leases (if such item is a document separate
from the Mortgage) and (C) any other recorded document relating to the
Mortgage Loan otherwise included in the Mortgage File, in favor of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2003-C6, or in blank;
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(v) an original assignment of all unrecorded documents relating
to the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above), in favor of Xxxxx Fargo Bank Minnesota, N.A., as
trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2003-C6, or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment
(which may be a marked version of the policy that has been executed
by an authorized representative of the title company or an agreement
to provide the same pursuant to binding escrow instructions executed
by an authorized representative of the title company) to issue such
title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan
or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements
prior to the Closing Date) and, if there is an effective UCC
Financing Statement and continuation statement in favor of the Seller
on record with the applicable public office for UCC Financing
Statements, an original UCC Amendment, in form suitable for filing in
favor of Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2003-C6, as
assignee, or in blank;
(ix) an original or copy of (A) any Ground Lease or (B) any loan
guaranty, indemnity, ground lessor estoppel or environmental
insurance policy or Lease Enhancement Policy;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor; and
(xi) copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of
the Pooling and Servicing Agreement and (ii) to perform its obligations
described in Section 2.01(d) of the Pooling and Servicing Agreement. Without
limiting the generality of the foregoing, if a draw upon a letter of credit is
required before its transfer to the Trust Fund can be completed, the Seller
shall draw upon such letter of credit for the benefit of the Trust pursuant to
written instructions from the Master Servicer. The Seller shall reimburse the
Trustee for all reasonable costs and expenses incurred for recording any
documents described in Section 2(c)(iv)(C).
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(e) All documents and records (except attorney-client privileged
communications and internal correspondence and credit analysis of the Seller)
relating to each Mortgage Loan and in the Seller's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the Seller to the
Master Servicer or at the direction of the Master Servicer to the appropriate
sub-servicer, together with any related escrow amounts and reserve amounts.
(f) 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.
Section 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly existing
and in good standing under the laws of the State of New York and
possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and
to execute, deliver and comply with its obligations under the terms
of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal,
valid and binding obligation of the Seller, enforceable against the
Seller in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors'
rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or
at law), and by public policy considerations underlying the
securities laws, to the extent that such public policy considerations
limit the enforceability of the provisions of this Agreement which
purport to provide indemnification from liabilities under applicable
securities laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's 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 material default (or an event which, with notice or
lapse of time, or both, would constitute a material default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is
bound;
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(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 have consequences that would materially and adversely
affect its performance hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect
the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the
execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent
has been obtained);
(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 contemplated
by this Agreement except as have previously been obtained, and no
bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith
and reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) 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 Aggregate Purchase Price.
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 and Schedule II hereto for the benefit of the
Purchaser and the Trustee for the benefit of the Certificateholders as of the
Closing Date, with respect to (and solely with respect to) each Mortgage Loan,
which representations and warranties are subject to the exceptions set forth
on Schedule III.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 90 days from
receipt of such notice (or, in the case of a Document Defect or Breach
relating to a Mortgage Loan not being a "qualified mortgage" within the
meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90
days from 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 shall materially and adversely
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affect the value of the applicable 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 actual losses
and any Additional Trust Fund Expenses directly resulting therefrom or, if
such Document Defect or Breach (other than omissions solely due to a document
not having been returned by the related recording office) cannot be cured
within such 90-day period, (i) repurchase the affected Mortgage Loan at the
applicable Purchase Price not later than the end of such 90-day period or (ii)
substitute a Qualified Substitute Mortgage Loan for such affected Mortgage
Loan not later than the end of such 90-day period (and in no event later than
the second anniversary of the Closing Date) and pay the Master Servicer for
deposit into the Certificate Account, any Substitution Shortfall Amount in
connection therewith; provided, however, that unless the Breach would cause
the Mortgage Loan not to be a Qualified Mortgage, and if such Document Defect
or Breach is capable of being cured but not within such 90-day period and the
Seller has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, such Seller shall have an
additional 90 days to complete such cure (or, failing such cure, to repurchase
or substitute the related Mortgage Loan); and provided, further, that with
respect to such additional 90-day period the Seller shall have delivered an
officer's certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided; further, that no Document Defect
(other than with respect to a Mortgage Note, Mortgage, title insurance policy,
Ground Lease or any letter of credit) shall be considered to materially and
adversely affect the value of the related Mortgage Loan or the interests of
the Certificateholders therein unless the document with respect to which the
Document Defect exists is required in connection with an imminent enforcement
of the mortgagee's rights or remedies under the related Mortgage Loan,
defending any claim asserted by any borrower or third party with respect to
the Mortgage Loan, establishing the validity or priority of any lien or any
collateral securing the Mortgage Loan or for any immediate significant
servicing obligations. For a period of two years from the Closing Date, so
long as there remains any Mortgage File relating to a Mortgage Loan as to
which there is any uncured Document Defect or Breach, the Seller shall provide
the officer's certificate to the Trustee described above as to the reasons
such Document Defect or Breach remains uncured and as to the actions being
taken to pursue cure. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance as described in
paragraph 12 of Schedule I hereof in lieu of the delivery of the actual policy
of lender's title insurance shall not be considered a Document Defect or
Breach with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the immediately preceding
paragraph, (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable
Document Defect or Breach does not constitute a Document Defect or Breach, as
the case may be, as to any other Crossed Loan in such Crossed Group (without
regard to this paragraph), then the applicable Document Defect or Breach, as
the case may be, will be deemed to constitute a Document Defect or Breach, as
the case may be, as to each other Crossed Loan in the Crossed Group for
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purposes of this paragraph, and the Seller will be required to repurchase or
substitute for all of the remaining Crossed Loan(s) in the related Crossed
Group as provided in the immediately preceding paragraph unless such other
Crossed Loans in such Crossed Group satisfy the Crossed Loan Repurchase
Criteria and satisfy all other criteria for substitution or repurchase, as
applicable, of Mortgage Loans set forth herein. In the event that the
remaining 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 Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The
Seller shall be responsible for the cost of any Appraisal required to be
obtained by the Master Servicer to determine if the Crossed Loan Repurchase
Criteria have been satisfied, so long as the scope and cost of such Appraisal
has been approved by the Seller (such approval not to be unreasonably
withheld). To the extent that the Seller is required to purchase or substitute
for a Crossed Loan hereunder in the manner prescribed above while the
Purchaser continues to hold any other Crossed Loans in such Crossed Group,
neither the Seller nor the Purchaser shall enforce any remedies against the
other's Primary Collateral, but each is permitted to exercise remedies against
the Primary Collateral securing its respective Crossed Loans, including, with
respect to the Purchaser, the Primary Collateral securing the Crossed Loans
still held by the Purchaser, so long as such exercise does not materially
impair the ability of the other party to exercise its remedies against its
Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the
Primary Collateral securing the Crossed Loans held by such party, then the
Seller and the Purchaser shall forbear from exercising such remedies until the
Mortgage Loan documents evidencing and securing the relevant Crossed Loans can
be modified in a manner that complies with this Agreement to remove the threat
of material impairment as a result of the exercise of remedies. Any reserve or
other cash collateral or letters of credit securing the Crossed Loans shall be
allocated between such Crossed Loans in accordance with the Mortgage Loan
documents, or otherwise on a pro rata basis based upon their outstanding
Stated Principal Balances. Notwithstanding the foregoing, if a Crossed Loan
included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to
such modification, the Seller shall furnish to the Trustee an Opinion of
Counsel that such modification shall not cause an Adverse REMIC Event. Any
expenses incurred by the Purchaser in connection with such modification or
accommodation (including but not limited to recoverable attorney fees) shall
be paid by the Seller.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account,
and the delivery of the Mortgage File(s) and the Servicing File(s) for the
related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master
Servicer, respectively, if applicable (i) the Trustee shall execute and
deliver such endorsements and assignments as are provided to it by the Master
Servicer, in each case without recourse, representation or warranty, as shall
be necessary to vest in the 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
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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 Loans.
(f) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3.
Section 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage Loans
to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforcement may be limited by (i) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (ii) other laws relating to or
affecting the rights of creditors generally, or (iii) general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in
the creation or imposition of any lien on any of the Purchaser's assets or
property, or conflicts or will conflict with, results or will result in a
breach of, or constitutes or will constitute a default under (i) any term or
provision of the Purchaser's Articles of Incorporation or Bylaws, (ii) any
term or provision of any material agreement, contract, instrument or
indenture, to which the Purchaser is a party or by which the Purchaser is
bound, or (iii) any law, rule, regulation, order, judgment, writ, injunction
or decree of any court or governmental authority having jurisdiction over the
Purchaser or its assets.
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(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser
as a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to enter into and/or perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
Section 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Mayer, Brown, Xxxx & Maw LLP,
Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4
of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in Section 6
of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to 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 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;
and
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(f) A letter from the independent accounting firm of KPMG LLP or
Ernst & Young LLP in form satisfactory to the Purchaser, relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus and Prospectus Supplement, respectively.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
Section 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters 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 or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein, was at the respective times of such signing
and delivery, and is as of the Closing Date, duly elected or appointed,
qualified and acting as such officer or representative, and the signatures of
such persons appearing on such documents and certificates are their genuine
signatures;
(d) An officer's certificate from an officer of the Seller (signed in
his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser and the Underwriters may rely, to the effect that (i) such officer
has carefully examined the Specified Portions of the Prospectus Supplement and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Prospectus Supplement, as of the date of the
Prospectus Supplement or as of the Closing Date, included or include any
untrue statement of a material fact relating to the Mortgage Loans or omitted
or omit to state therein a material fact necessary in order to make the
statements therein relating to the Mortgage Loans, in light of the
circumstances under which they were made, not misleading, and (ii) such
officer has examined the Specified Portions of the Memorandum and nothing has
come to his attention that would lead him to believe that the Specified
Portions of the Memorandum, as of the date thereof or as of the Closing Date,
included or include any untrue statement of a material fact relating to the
Mortgage Loans or omitted or omit to state therein a material fact necessary
in order to make the statements therein related to the Mortgage Loans, in the
light of the circumstances under which they were made, not misleading. The
"Specified Portions" of the Prospectus Supplement shall consist of Annex A
thereto, the diskette which accompanies the Prospectus Supplement (insofar as
such diskette is consistent with such Annex A) and the following sections of
10
the Prospectus Supplement (exclusive of any statements in such sections that
purport to summarize the servicing and administration provisions of the
Pooling and Servicing Agreement: "Summary of Prospectus Supplement--The
Parties--The Mortgage Loan Sellers," "Summary of Prospectus Supplement--The
Mortgage Loans," "Risk Factors--The Mortgage Loans," and "Description of the
Mortgage Pool--General," "--Mortgage Loan History," "--Certain Terms and
Conditions of the Mortgage Loans," "-- Assessments of Property Condition,"
"--Co-Lender Loans," "--Additional Mortgage Loan Information," "-- Twenty
Largest Mortgage Loans," "--The Mortgage Loan Sellers," "--Underwriting
Standards," and "--Representations and Warranties; Repurchases and
Substitutions." The "Specified Portions" of the Memorandum shall consist of
the Specified Portions of the Prospectus Supplement, the paragraph that begins
on page "ii" of the Memorandum and carries over to page "iii" of the
Memorandum and the first full paragraph on page "iii" of the Memorandum.
(e) The resolutions of the Seller's board of directors authorizing
the Seller's entering into the transactions contemplated by this Agreement,
the certificate of incorporation and by-laws of the Seller, and a certificate
of good standing of the Seller issued by the State of New York not earlier
than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (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 and
each of the Rating Agencies, together with such other written opinions as may
be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
Section 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser or any Underwriter within
the meaning of either Section 15 of the Securities Act of 1933, as amended
(the "1933 Act") or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), against any and all losses, expenses (including the
reasonable fees and expenses of legal counsel), claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Preliminary Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to
be filed as part of the Registration Statement pursuant to the No-Action
Letters, any Computational Materials or ABS Term Sheets with respect to the
Registered Certificates, or in any revision or amendment of or supplement to
any of the foregoing, (B) any items similar to Computational Materials or ABS
Term Sheets forwarded by the Seller to the Initial Purchasers, or in any
11
revision or amendment of or supplement to any of the foregoing or (C) the
summaries, reports, documents and other written and computer materials and all
other information regarding the Mortgage Loans or the Seller furnished by the
Seller for review by prospective investors (the items in (A), (B) and (C)
above being defined as the "Disclosure Material"), or (ii) arise out of or are
based upon the omission or alleged omission to state therein (in the case of
Computational Materials and ABS Term Sheets, when read in conjunction with the
Prospectus Supplement, in the case of items similar to Computational Materials
and ABS Term Sheets, when read in conjunction with the Memorandum, and in the
case of any summaries, reports, documents, written or computer materials, or
other information contemplated in clause (C) above, when read in conjunction
with the Memorandum) a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; but, with respect to the
Disclosure Material described in clauses (A) and (B) of the definition
thereof, only if and to the extent that (1) any such untrue statement or
alleged untrue statement or omission or alleged omission occurring in, or with
respect to, such Disclosure Material, arises out of or is based upon an untrue
statement or omission with respect to the Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties contained in the Data File
(it being herein acknowledged that the Data File was and will be used to
prepare the Prospectus Supplement and the Preliminary Prospectus Supplement,
including without limitation Annex A thereto, the Memorandum, the Diskette,
any Computational Materials and ABS Term Sheets with respect to the Registered
Certificates and any items similar to Computational Materials and ABS Term
Sheets forwarded to prospective investors in the Non-Registered Certificates),
(2) any such untrue statement or alleged untrue statement or omission or
alleged omission of a material fact occurring in, or with respect to, such
Disclosure Material, is with respect to, or arises out of or is based upon an
untrue statement or omission of a material fact with respect to, the
information regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties and/or the Seller set forth in the Specified Portions of
each of the Prospectus Supplement, the Preliminary Prospectus Supplement and
the Memorandum, (3) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 of this
Agreement or (4) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon any other written information
concerning the characteristics of the Mortgage Loans, the related obligors on
the Mortgage Loans or the related Mortgaged Properties furnished to the
Purchaser or the Underwriters by the Seller; provided that the indemnification
provided by this Section 7 shall not apply to the extent that such untrue
statement or omission of a material fact was made as a result of an error in
the manipulation of, or in any calculations based upon, or in any aggregation
of the information regarding the Mortgage Loans, the related Mortgagors and/or
the related Mortgaged Properties set forth in the Data File or Annex A to the
Prospectus Supplement or the Preliminary Prospectus Supplement to the extent
such information was not materially incorrect in the Data File or such Annex
A, as applicable, including without limitation the aggregation of such
information with comparable information relating to the Other Mortgage Loans.
Notwithstanding the foregoing, the indemnification provided in this Section
7(a) shall not inure to the benefit of any Underwriter or Initial Purchaser
(or to the benefit of any person controlling such Underwriter or Initial
Purchaser) from whom the person asserting claims giving rise to any such
losses, claims, damages, expenses or liabilities purchased Certificates if (x)
the subject untrue statement or omission or alleged untrue statement or
omission made in any Disclosure Material (exclusive of the Prospectus or any
corrected or amended Prospectus or the Memorandum or any corrected or amended
Memorandum) is eliminated or remedied in the Prospectus or the Memorandum (in
either case, as corrected or amended, if applicable), as applicable, and (y) a
copy of the Prospectus or Memorandum (in either case, as corrected or amended,
12
if applicable), as applicable, shall not have been sent to such person at or
prior to the written confirmation of the sale of such Certificates to such
person, and (z) in the case of a corrected or amended Prospectus or
Memorandum, such Underwriter or Initial Purchaser received written notice of
such correction or amendment prior to the written confirmation of such sale.
The information described in clauses (1) through (4) above is collectively
referred to as the "Seller Information". The Seller shall, subject to clause
(c) below, reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action. This indemnity
will be in addition to any liability which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-83930 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information
incorporated therein by reference; "Base Prospectus" shall mean the prospectus
dated August 5, 2003, as supplemented by the prospectus supplement dated
August 18, 2003 (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus") relating to the Registered Certificates,
including all annexes thereto; "Preliminary Prospectus Supplement" shall mean
the prospectus supplement dated August 5, 2003 relating to the Registered
Certificates, including all annexes thereto; "Memorandum" shall mean the
private placement memorandum dated August 18, 2003, relating to the
Non-Registered Certificates, including all exhibits thereto; "Registered
Certificates" shall mean the Class A-1, Class A-2, Class A-3, Class A-4, Class
B, Class C, Class D and Class E Certificates; "Non-Registered Certificates"
shall mean the Certificates other than the Registered Certificates;
"Computational Materials" shall have the meaning assigned thereto in the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Securities and Exchange Commission (the "Commission") to
Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated,
and Xxxxxx Structured Asset Corporation and the no-action letter dated May 27,
1994 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (together, the "Xxxxxx Letters"); "ABS Term
Sheets" shall have the meaning assigned thereto in the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter" and,
together with the Xxxxxx letters, the "No-Action Letters"); "Diskette" shall
mean the diskette or compact disc attached to each of the Prospectus and the
Memorandum; and "Data File" shall mean the compilation of information and data
regarding the Mortgage Loans covered by the Agreed Upon Procedures Letters
dated August 5, 2003 and rendered by KPMG LLP or Ernst & Young LLP, as the
case may be (a "hard copy" of which Data File was initialed on behalf of the
Seller and the Purchaser).
(c) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to
be made against the Seller (the "indemnifying party") under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party under this Section 7
(except to the extent that such omission has prejudiced the indemnifying party
in any material respect) or from any liability which it may have otherwise
than under this Section 7. In case any such action is brought against any
13
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the
indemnified party shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so to assume
the defense of such action and approval by the indemnified party of counsel,
the indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the Underwriters, representing
all the indemnified parties under Section 7(a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall only be in respect
of the counsel referred to in such clause (i) or (iii). Unless it shall assume
the defense of any proceeding, an indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party shall indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities, in such proportion as
is appropriate to reflect the relative fault of the indemnified and
indemnifying parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnified and
indemnifying parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
14
defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be
ultimately obligated to pay such expenses. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne
by the indemnifying party hereunder, the party that received such payment
shall promptly refund the amount so paid to the party which made such payment.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Purchaser, the Underwriters, any of their respective directors or officers, or
any person controlling the Purchaser or the Underwriters, and (iii) acceptance
of and payment for any of the Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party
beneficiaries of the provisions of this Section 7.
Section 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata
portion to be determined according to the percentage that the Citigroup
Mortgage Loan Balance represents as of the Cut-Off Date Pool Balance): (a) the
costs and expenses of printing and delivering the Pooling and Servicing
Agreement and the Certificates; (b) the costs and expenses of printing (or
otherwise reproducing) and delivering a preliminary and final Prospectus and
Memorandum relating to the Certificates; (c) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (d) the filing
fee charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (e) the fees charged by the Rating Agencies to
rate the Certificates so rated; (f) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and any related
Computational Materials or ABS Term Sheets, including in respect of the cost
of obtaining any "comfort letters" with respect to such items; (g) the
reasonable out-of-pocket costs and expenses in connection with the
qualification or exemption of the Certificates under state securities or "Blue
Sky" laws, including filing fees and reasonable fees and disbursements of
counsel in connection therewith, in connection with the preparation of any
"Blue Sky" survey and in connection with any determination of the eligibility
of the Certificates for investment by institutional investors and the
preparation of any legal investment survey; (h) the expenses of printing any
such "Blue Sky" survey and legal investment survey; and (i) the reasonable
fees and disbursements of counsel to the Underwriters; provided, however,
Seller shall pay (or shall reimburse the Purchaser to the extent that the
Purchaser has paid) the expense of recording any assignment of Mortgage or
assignment of Assignment of Leases as contemplated by Section 2 hereof with
respect to such Seller's Mortgage Loans. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
15
Section 9. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale
of the Mortgage Loans by the Seller to the Purchaser and not as a pledge of
the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned
intent of the parties, the Mortgage Loans are held to be property of the
Seller, then, (a) it is the express intent of the parties that such conveyance
be deemed a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller, and (b) (i) this Agreement
shall also be deemed to be a security agreement within the meaning of Article
9 of the Uniform Commercial Code of the applicable jurisdiction; (ii) the
conveyance provided for in Section 2 hereof shall be deemed to be a grant by
the Seller to the Purchaser of a security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans, and all amounts
payable to the holder of the Mortgage Loans in accordance with the terms
thereof, and all proceeds of the conversion, voluntary or involuntary, of the
foregoing into cash, instruments, securities or other property, including,
without limitation, all amounts, other than investment earnings, from time to
time held or invested in the Certificate Account, the Distribution Account or,
if established, the REO Account (each as defined in the Pooling and Servicing
Agreement) whether in the form of cash, instruments, securities or other
property; (iii) the assignment to the Trustee of the interest of the Purchaser
as contemplated by Section 1 hereof shall be deemed to be an assignment of any
security interest created hereunder; (iv) the possession by the Trustee or any
of its agents, including, without limitation, the Custodian, of the Mortgage
Notes, and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be possession by the
secured party for purposes of perfecting the security interest pursuant to
Section 9-313 of the Uniform Commercial Code of the applicable jurisdiction;
and (v) notifications to persons (other than the Trustee) holding such
property, and acknowledgments, receipts or confirmations from persons (other
than the Trustee) holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the secured party for the purpose of
perfecting such security interest under applicable law. 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.
Section 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
Section 11. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to
16
the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates
of officers of 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 13. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant
of this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof.
Section 14. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
Section 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation,
expert witness fees). As used herein, the term "prevailing party" shall mean
the party which obtains the principal relief it has sought, whether by
compromise settlement or judgment. If the party which commenced or instituted
the action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the
prevailing party.
Section 17. Further Assurances. 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.
17
Section 18. 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) and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 7. This Agreement is
enforceable by the Underwriters and the other third party beneficiaries hereto
in all respects to the same extent as if they had been signatories hereof.
Section 19. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party, or third party beneficiary, against
whom such waiver or modification is sought to be enforced. No amendment to the
Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
Section 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP and Ernst & Young 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.
Section 21. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge,"
such statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
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
------
CITIGROUP GLOBAL MARKETS REALTY CORP.
By:
-------------------------------------
Name:
Title:
Address for Notices:
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
PURCHASER
---------
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC.
By:
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
19
SCHEDULE I
----------
General Mortgage Representations and Warranties
-----------------------------------------------
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-Off Date.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of
federal, state or local law relating to the origination of such
Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good and marketable title to, and was the
sole owner of, each Mortgage Loan, and the Seller is transferring
such Mortgage Loan free and clear of any and all liens, pledges,
charges or security interests of any nature encumbering such Mortgage
Loan. Upon consummation of the transactions contemplated by the
Mortgage Loan Purchase Agreement, the Seller will have validly and
effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any pledge,
lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder by the
Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed in connection with such Mortgage Loan is
legal, valid and binding obligation of the related Mortgagor (subject
to any non-recourse provisions therein and any state anti-deficiency
or market value limit deficiency legislation), enforceable in
accordance with its terms, except (a) that certain provisions
contained in such Mortgage Loan documents are or may be unenforceable
in whole or in part under applicable state or federal laws, but
neither the application of any such laws to any such provision nor
the inclusion of any such provisions renders any of the Mortgage Loan
documents invalid as a whole and such Mortgage Loan documents taken
as a whole are enforceable to the extent necessary and customary for
the practical realization of the rights and benefits afforded thereby
and (b) as such enforcement may be limited by bankruptcy, insolvency,
receivership, reorganization, moratorium, redemption, liquidation or
other laws affecting the enforcement of creditors' rights generally,
or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). The
related Mortgage Note and Mortgage contain no provision limiting the
right or ability of the Seller to assign, transfer and convey the
related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect
to any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-Off Date, there
is no valid offset, defense, counterclaim or right to rescission with
I-1
respect to such Mortgage Note, Mortgage(s) or other agreements,
except in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees,
additional interest, prepayment premiums or yield maintenance
charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid
and binding first priority assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Each Mortgage and
Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions set forth
in paragraph (5) above and the following title exceptions (each such
title exception, a "Title Exception", and collectively, the "Title
Exceptions"): (a) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet due and
payable, (b) covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of which,
individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in paragraph
(12) below or appearing of record, none of which, individually or in
the aggregate, materially interferes with the current use of the
Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under
the Mortgage Loan when they become due or materially and adversely
affects the value of the Mortgaged Property, (d) other matters to
which like properties are commonly subject, none of which,
individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground
leases, space leases or operating leases) at the Mortgaged Property
to remain following a foreclosure or similar proceeding (provided
that such tenants are performing under such leases) and (f) if such
Mortgage Loan is cross-collateralized with any other Mortgage Loan,
the lien of the Mortgage for such other Mortgage Loan, none of which,
individually or in the aggregate, materially and adversely interferes
with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they
become due or materially and adversely affects the value of the
Mortgaged Property. Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans, there are no mortgage loans that are
senior or pari passu with respect to the related Mortgaged Property
or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not
filed and/or recorded, have been submitted in proper form for filing
and recording), in all public places necessary at the time of the
origination of the Mortgage Loan to perfect a valid security interest
in all items of personal property reasonably necessary to operate the
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Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a
purchase money security interest or a sale and leaseback financing
arrangement permitted under the terms of such Mortgage Loan or any
other personal property leases applicable to such personal property),
to the extent perfection may be effected pursuant to applicable law
by recording or filing, and the Mortgages, security agreements,
chattel Mortgages or equivalent documents related to and delivered in
connection with the related Mortgage Loan establish and create a
valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law). Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest
in rents or other personal property to the extent that possession or
control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that
prior to the Cut-Off Date have become delinquent in respect of each
related Mortgaged Property have been paid, or an escrow of funds in
an amount sufficient to cover such payments has been established. For
purposes of this representation and warranty, real estate taxes and
governmental assessments and installments thereof shall not be
considered delinquent until the earlier of (a) the date on which
interest and/or penalties would first be payable thereon and (b) the
date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-Off Date, and to the
Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable Mortgage Loans by the
Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows
were established at origination) that would affect materially and
adversely the value of such Mortgaged Property as security for the
Mortgage Loan and to the Seller's actual knowledge as of the Cut-Off
Date there was no proceeding pending for the total or partial
condemnation of such Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan after all advances of
principal (as set forth on the Mortgage Loan Schedule) is insured by
an ALTA lender's title insurance policy (or a binding commitment
therefor), or its equivalent as adopted in the applicable
jurisdiction, insuring the Seller, its successors and assigns,
subject only to the Title Exceptions; the Seller or its successors or
assigns is the named insured of such policy; such policy is
assignable without consent of the insurer and will inure to the
benefit of the Trustee as mortgagee of record; is in full force and
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effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no claims have been
made under such policy and the Seller has not done anything, by act
or omission, and the Seller has no actual knowledge of any matter,
which would impair or diminish the coverage of such policy. The
insurer issuing such policy is either (x) a nationally-recognized
title insurance company or (y) qualified to do business in the
jurisdiction in which the related Mortgaged Property is located to
the extent required; such policy contains no material exclusions for,
or affirmatively insures (except for any Mortgaged Property located
in a jurisdiction where such insurance is not available) (a) access
to public road (except as provided below) or (b) against any loss due
to encroachments of any material portion of the improvements thereon.
13. Except as provided below, as of the date of its origination, all
insurance coverage required under each related Mortgage, which
insurance covered such risks as were customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related
Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, is in an amount (subject to a customary deductible)
at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the initial
principal balance of the Mortgage Loan, and in any event, the amount
necessary to prevent operation of any co-insurance provisions; and,
except if such Mortgaged Property is operated as a mobile home park,
is also covered by business interruption or rental loss insurance, in
an amount at least equal to 12 months of operations of the related
Mortgaged Property (or in the case of a Mortgaged Property without
any elevator, 6 months), all of which was in full force and effect
with respect to each related Mortgaged Property; and, except as
provided below, as of the Cut-Off Date, to the actual knowledge of
the Seller, all insurance coverage required under each Mortgage,
which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable
to the related Mortgaged Property in the jurisdiction in which such
Mortgaged Property is located, is in full force and effect with
respect to each related Mortgaged Property; all premiums due and
payable through the Closing Date have been paid; and no notice of
termination or cancellation with respect to any such insurance policy
has been received by the Seller; and except for certain amounts not
greater than amounts which would be considered prudent by an
institutional commercial mortgage lender with respect to a similar
Mortgage Loan and which are set forth in the related Mortgage, any
insurance proceeds in respect of a casualty loss, will be applied
either (i) to the repair or restoration of all or part of the related
Mortgaged Property or (ii) the reduction of the outstanding principal
balance of the Mortgage Loan, subject in either case to requirements
with respect to leases at the related Mortgaged Property and to other
exceptions customarily provided for by prudent institutional lenders
for similar loans. The Mortgaged Property is also covered by
comprehensive general liability insurance against claims for personal
and bodily injury, death or property damage occurring on, in or about
the related Mortgaged Property, in an amount customarily required by
prudent institutional lenders.
The insurance policies contain a standard mortgagee clause naming the
Seller, its successors and assigns as loss payee, in the case of a
property insurance policy, and additional insured in the case of a
liability insurance policy and provide that they are not terminable
without 30 days prior written notice to the Mortgagee (or, with
respect to non-payment, 10 days prior written notice to the
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Mortgagee) or such lesser period as prescribed by applicable law.
Each Mortgage requires that the Mortgagor maintain insurance as
described above or permits the Mortgagee to require insurance as
described above, and permits the Mortgagee to purchase such insurance
at the Mortgagor's expense if Mortgagor fails to do so.
14. Except as provided below, (a) other than payments due but not yet 30
days or more delinquent, to the Seller's actual knowledge, based upon
due diligence customarily performed with the servicing of comparable
mortgage loans by prudent institutional lenders, there is no material
default, breach, violation or event of acceleration existing under
the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not
yet delinquent) which, with the passage of time or with notice and
the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration,
provided, however, that this representation and warranty does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise
covered by any other representation and warranty made by the Seller
in any of paragraphs (10) (15) (19) and (21) of this Schedule I or in
any paragraph of Schedule II, and (b) the Seller has not waived any
material default, breach, violation or event of acceleration under
such Mortgage or Mortgage Note, except for a written waiver contained
in the related Mortgage File being delivered to the Purchaser, and
pursuant to the terms of the related Mortgage or the related Mortgage
Note and other documents in the related Mortgage File no Person or
party other than the holder of such Mortgage Note may declare any
event of default or accelerate the related indebtedness under either
of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior
12 months (or since the date of origination if such Mortgage Loan has
been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default interest,
late charges or prepayment premiums) of such Mortgage Loan is a fixed
rate.
17. Each related Mortgage does not provide for or permit, without the
prior written consent of the holder of the Mortgage Note, each
related Mortgaged Property to secure any other promissory note or
obligation except as expressly described in such Mortgage.
18. Each Mortgage Loan is directly secured by a Mortgage on a commercial
property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or
multifamily residential property that consists of an interest in real
property (within the meaning of Treasury Regulations Sections
1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
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property which secures such Mortgage Loan was at least equal to 80%
of the principal amount of the Mortgage Loan (i) as of the Testing
Date, or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in
real property shall first be reduced by (1) the amount of any lien on
such interest in real property that is senior to the Mortgage Loan,
and (2) a proportionate amount of any lien on such interest in real
property that is on a parity with the Mortgage Loan, and (B) the
"Testing Date" shall be the date on which the referenced Mortgage
Loan was originated unless (1) such Mortgage Loan was modified after
the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning
of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage
Loan was reasonably foreseeable. However, if the referenced Mortgage
Loan has been subjected to a "significant modification" after the
date of its origination and at a time when such Mortgage Loan was not
in default or when default with respect to such Mortgage Loan was not
reasonably foreseeable, the Testing Date shall be the date upon which
the latest such "significant modification" occurred. The Mortgage
Loan documents with respect to each Defeasance Loan do not allow such
Defeasance Loan to be defeased prior to two years after the Startup
Day.
19. One or more environmental site assessments or updates thereof were
performed by an environmental consulting firm independent of the
Seller and the Seller's affiliates with respect to each related
Mortgaged Property during the 18-months preceding the origination of
the related Mortgage Loan, and the Seller, having made no independent
inquiry other than to review the report(s) prepared in connection
with the assessment(s) referenced herein, has no actual knowledge and
has received no notice of any material and adverse environmental
condition or circumstance affecting such Mortgaged Property that was
not disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term
is defined in the Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process
Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all
material respects, then either (i) an escrow greater than 100% of the
amount identified as necessary by the environmental consulting firm
to address the REC is held by the Seller for purposes of effecting
same (and the borrower has covenanted in the Mortgage Loan documents
to perform such work), (ii) the related borrower or other responsible
party having financial resources reasonably estimated to be adequate
to address the REC is required to take such actions or is liable for
the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or
regulation, (iii) the borrower has provided an environmental
insurance policy, (iv) an operations and maintenance plan has been or
will be implemented or (v) such conditions or circumstances were
investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or
updates that were in the possession of the Seller and that relate to
a Mortgaged Property insured by an environmental insurance policy
have been delivered to or disclosed to the environmental insurance
carrier issuing such policy prior to the issuance of such policy.
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20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions
for comparable mortgaged properties similarly situated such as to
render the rights and remedies of the holder thereof adequate for the
practical realization against the Mortgaged Property of the benefits
of the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or
similar law affecting the right of creditors and the application of
principles of equity.
21. At the time of origination and, to the actual knowledge of Seller as
of the Cut-Off Date, no Mortgagor is a debtor in, and no Mortgaged
Property is the subject of, any state or federal bankruptcy or
insolvency proceeding.
22. Each Mortgage Loan is a whole loan and contains no equity
participation by the lender or shared appreciation feature and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or,
other than the ARD Loans, provide for negative amortization. The
Seller holds no preferred equity interest.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions
lending on the security of property comparable to the related
Mortgaged Property, each related Mortgage or loan agreement contains
provisions for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without complying with
the requirements of the Mortgage or loan agreement, (a) the related
Mortgaged Property, or any controlling interest in the related
Mortgagor, is directly transferred or sold (other than by reason of
family and estate planning transfers, transfers by devise, descent or
operation of law upon the death of a member, general partner or
shareholder of the related Borrower and transfers of less than a
controlling interest in a mortgagor, or a substitution or release of
collateral within the parameters of paragraph (26) below), or (b) the
related Mortgaged Property is encumbered in connection with
subordinate financing by a lien or security interest against the
related Mortgaged Property, other than any existing permitted
additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in
any manner which materially interferes with the security intended to
be provided by such Mortgage.
25. Except as provided below, each related Mortgaged Property was
inspected by or on behalf of the related originator or an affiliate
during the 12 month period prior to the related origination date.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in
any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to
be provided by such Mortgage, and, except with respect to Mortgage
Loans (a) which permit defeasance by means of substituting for the
Mortgaged Property (or, in the case of a Mortgage Loan secured by
multiple Mortgaged Properties, one or more of such Mortgaged
Properties) U.S. Treasury obligations sufficient to pay the Mortgage
Loans (or portions thereof) in accordance with their terms, (b) where
a release of the portion of the Mortgaged Property was contemplated
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at origination and such portion was not considered material for
purposes of underwriting the Mortgage Loan, (c) where release is
conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents
adequate consideration for such Mortgaged Property or the portion
thereof that is being released, or (d) which permit the related
Mortgagor to substitute a replacement property in compliance with
REMIC Provisions, the terms of the related Mortgage do not provide
for release of any portion of the Mortgaged Property from the lien of
the Mortgage except in consideration of payment in full therefor.
27. Except as provided below, to the Seller's actual knowledge, based
upon a letter from governmental authorities, a legal opinion, an
endorsement to the related title policy, or based upon other due
diligence considered reasonable by prudent commercial conduit
mortgage lenders in the area where the applicable Mortgaged Property
is located, as of the date of origination of such Mortgage Loan and
as of the Cut-Off Date, there are no material violations of any
applicable zoning ordinances, building codes and land laws applicable
to the Mortgaged Property or the use and occupancy thereof which (a)
are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or
(b) would have a material adverse effect on the value, operation or
net operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination
of each Mortgage Loan, none of the material improvements which were
included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the
Mortgage Loan lies outside of the boundaries and building restriction
lines of such property (except Mortgaged Properties which are legal
non-conforming uses), to an extent which would have a material
adverse affect on the value of the Mortgaged Property or related
Mortgagor's use and operation of such Mortgaged Property (unless
affirmatively covered by title insurance) and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material and adverse extent (unless affirmatively covered by title
insurance).
29. With respect to at least 95% of such Seller's Mortgage Loans (by
balance) having a Cut-Off Date Balance in excess of 1% of the Initial
Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or
Mortgaged Properties, as applicable, and assets incidental to its
ownership and operation of such Mortgaged Property, and to hold
itself out as being a legal entity, separate and apart from any other
Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received
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from any Person other than the Mortgagor, for or on account of
payments due on the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge,
as of the Cut-Off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received
notice, against the Mortgagor or the related Mortgaged Property the
adverse outcome of which could reasonably be expected to materially
and adversely affect such Mortgagor's ability to pay principal,
interest or any other amounts due under such Mortgage Loan or the
security intended to be provided by the Mortgage Loan documents or
the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge,
as of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has
either been properly designated and serving under such Mortgage or
may be substituted in accordance with the Mortgage and applicable
law.
33. The Mortgage Loan and the interest (exclusive of any default
interest, late charges or prepayment premiums) contracted for
complied as of the date of origination with, or is exempt from,
applicable state or federal laws, regulations and other requirements
pertaining to usury.
34. The related Mortgage Note is not secured by any collateral that
secures a Mortgage Loan that is not in the Trust Fund and each
Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
35. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in
full force and effect.
36. All escrow deposits and payments required pursuant to the Mortgage
Loan as of the Closing Date required to be deposited with the Seller
in accordance with the Mortgage Loan documents have been so
deposited, are in the possession, or under the control, of the Seller
or its agent and there are no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans
by prudent commercial and multifamily mortgage lending institutions
with respect to the related geographic area and properties comparable
to the related Mortgaged Property, as of the date of origination of
the Mortgage Loan, the related Mortgagor, the related lessee,
franchisor or operator was in possession of all material licenses,
permits and authorizations then required for use of the related
Mortgaged Property, and, as of the Cut-Off Date, the Seller has no
actual knowledge that the related Mortgagor, the related lessee,
franchisor or operator was not in possession of such licenses,
permits and authorizations.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage
Loan have been in all respects legal and have met customary industry
standards for servicing of commercial mortgage loans for conduit loan
programs.
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39. Except for Mortgagors under Mortgage Loans the Mortgaged Property
with respect to which includes a Ground Lease, the related Mortgagor
(or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
40. Except as provided below, the Mortgage Loan documents for each
Mortgage Loan provide that each Mortgage Loan is non-recourse to the
related Mortgagor except that the related Mortgagor accepts
responsibility for fraud and/or other intentional material
misrepresentation. Furthermore, except as provided below, the
Mortgage Loan documents for each Mortgage Loan provide that the
related Mortgagor shall be liable to the lender for losses incurred
due to the misapplication or misappropriation of rents collected in
advance or received by the related Mortgagor after the occurrence of
an event of default and not paid to the Mortgagee or applied to the
Mortgaged Property in the ordinary course of business, misapplication
or conversion by the Mortgagor of insurance proceeds or condemnation
awards or breach of the environmental covenants in the related
Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5), the Assignment
of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and
enforceable lien and security interest in the related Mortgagor's
interest in all leases, subleases, licenses or other agreements
pursuant to which any Person is entitled to occupy, use or possess
all or any portion of the real property.
42. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two years after the Closing Date, (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an
amount sufficient to make all scheduled payments under the Mortgage
Note and (c) only to facilitate the disposition of the Mortgaged
Property and not as a part of an arrangement to collateralize a REMIC
offering with obligations that are not real estate mortgages. In
addition, if such Mortgage contains such a defeasance provision, it
provides (or otherwise contains provisions pursuant to which the
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holder can require) that an opinion be provided to the effect that
such holder has a first priority perfected security interest in the
defeasance collateral. The related Mortgage Loan documents permit the
lender to charge all of its expenses associated with a defeasance to
the Mortgagor (including rating agencies' fees, accounting fees and
attorneys' fees), and provide that the related Mortgagor must deliver
(or otherwise, the Mortgage Loan documents contain certain provisions
pursuant to which the lender can require) (i) an accountant's
certification as to the adequacy of the defeasance collateral to make
payments under the related Mortgage Loan for the remainder of its
term, (ii) an Opinion of Counsel that the defeasance complies with
all applicable REMIC Provisions, and (iii) assurances from the Rating
Agencies that the defeasance will not result in the withdrawal,
downgrade or qualification of the ratings assigned to the
Certificates. Notwithstanding the foregoing, some of the Mortgage
Loan documents may not affirmatively contain all such requirements,
but such requirements are effectively present in such documents due
to the general obligation to comply with the REMIC Provisions and/or
deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability
of the Mortgage Loan, the originator of such Mortgage Loan was
authorized to do business in the jurisdiction in which the related
Mortgaged Property is located at all times when it originated and
held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage
Loan.
46. None of the Mortgaged Properties are encumbered, and none of the
Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of
money junior to or of equal priority with, or superior to, the lien
of the related Mortgage (other than Title Exceptions, taxes,
assessments and contested mechanics and materialmens liens that
become payable after the after the Cut-Off Date of the related
Mortgage Loan).
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SCHEDULE II
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Ground Lease Representations and Warranties
-------------------------------------------
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in
the related Mortgaged Property), the Seller represents and warrants the
following with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than 30 days after the Closing Date and such Ground
Lease permits the interest of the lessee thereunder to be encumbered
by the related Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its
assigns without the consent of the lessor thereunder (or, if any such
consent is required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any
such action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an
event of default occurs under the Ground Lease, (b) notice thereof is
provided to the mortgagee and (c) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond
the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due
but not yet 30 days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or
with notice and the expiration of any grace or cure period, would
constitute a material default under such Ground Lease.
5. The ground lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the
lessee to the mortgagee. The ground lease or ancillary agreement
further provides that no notice given is effective against the
mortgagee unless a copy has been given to the mortgagee in a manner
described in the ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject,
however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease) to cure any curable default under such
Ground Lease before the lessor thereunder may terminate such Ground
Lease.
II-1
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent letter
received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
(other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or
part of the related Mortgaged Property, with the mortgagee or a
trustee appointed by it having the right to hold and disburse such
proceeds as repair or restoration progresses, or to the payment or
defeasance of the outstanding principal balance of the Mortgage Loan,
together with any accrued interest (except in cases where a different
allocation would not be viewed as commercially unreasonable by any
commercial mortgage lender, taking into account the relative duration
of the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
lender.
11. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
------------
Wachovia 2003-C6
Exceptions to Representations for Citigroup Loans
Representation #11
------------------
--------------- --------------------------------- --------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------- --------------------------------- --------------------------------------------------------------------
0000 Xxxxxxxxxx Xxxxxx The seller of the Mortgaged Property received a letter from Dallas
County to purchase 4,599 square feet of land on the Eastern
boundary (Greenville Avenue) of the Mortgaged Property to
construct a right-turn lane for Walnut Hill. The seller
negotiated with Dallas County a payment of $155,000.00 for the
condemned property as well as certain temporary easements for
completion of the widening of Greenville Avenue. The taking will
not happen until the end of 2004, and will not affect the parking
nor any access to the Mortgaged Property. The borrower is
permitted to retain a portion of the condemnation proceeds, per a
separate agreement with its seller. The lender agreed to release
the condemned property following the taking from the lien of the
Deed of Trust upon delivery of (a) a title endorsement insuring
the new description of the property (b) a new survey showing that
the number of parking spaces on site has not changed since the
number at closing and (c) any other documentation requested by
lender. Borrower is required to reimburse lender for all costs
incurred in releasing the lien of the Deed of Trust from the
condemned property. The negotiations for the condemnation are
finalized. The remaining work is ministerial/mechanical.
--------------- --------------------------------- --------------------------------------------------------------------
Xxxxxx-Xxxxxxxxxx The Mortgaged Property is located at an intersection that the
Texas Department of Transportation is planning to expand through
the acquisition of certain right of ways. The original owner of
the property was aware of this and retained frontage along the
subject roadways for this purposes. According to the appraisal
from CB Xxxxxxx Xxxxx, Inc., the potential taking will not affect
the appraised value of the Mortgaged Property. The conditions for
release include: (i) the partial release parcel will be conveyed
to the Texas Department of Transportation, (ii) no event of
default exists under the loan documents, and (iii) the lender
receives an endorsement to its title insurance policy and a
revised survey.
--------------- --------------------------------- --------------------------------------------------------------------
III-1
Representation #13
------------------
--------------- --------------------------------- --------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------- --------------------------------- --------------------------------------------------------------------
Eckerd Drug Store-Athens With respect to each of the loans ist on the left, as of the
Eckerd Drug Store-Destreham Cut-off Date, although required under the terms of the mortgage,
Xxxxxx-Xxxxxxxxxx terrorism coverage is not in effect at the related Mortgaged
Eckerd Drug Store-Xxxxxxxx Property.
In addition, the Mortgaged Property in each case is not covered by
business interruption or rental loss insurance. Eckerd, however, is
required to restore and continue to pay rent following a casualty
during the term of the lease, unless the casualty occurs in the last
two years of the lease term, in which case Eckerd may terminate the
lease.
--------------- --------------------------------- --------------------------------------------------------------------
Walgreens-Pasadena The Mortgaged Property is not covered by business interruption or
rental loss insurance. However, Walgreens under the terms of its
lease is required to continue to pay rent for the first 12 months
following a casualty, provided that the landlord is effectuating the
repair and restoration of the Mortgaged Property in accordance with
the terms of the lease.
--------------- --------------------------------- --------------------------------------------------------------------
Representation #19
------------------
--------------- --------------------------------- --------------------------------------------------------------------
Loan Number Loan Name Description of Exception
--------------- --------------------------------- --------------------------------------------------------------------
Canterbury Court Apartments An on-site 5,000 gallon UST failed a tightness test. The report
states that it is likely that the soil and groundwater in the
vicinity has been impacted. No specific recommended action is
given in the Phase I for this issue. An independent consultant,
who reviewed the Phase I, provided a "worst-case" estimate of
$250,000 for the remediation costs necessary to obtain a No
Further Action Letter for the UST. The lender took a $250,000
holdback at closing. A Phase II has been requested to assess the
degree of impact from the failed UST.
--------------- --------------------------------- --------------------------------------------------------------------
Representation #24
------------------
--------------- --------------------------------- --------------------------------------------------------------------
Loan Number
Loan Name Description of Exception
--------------- --------------------------------- --------------------------------------------------------------------
Eckerd Drug Store-Athens With respect to each of the loans listed to the left, as of the
Eckerd Drug Store-Destreham Cut-off Date, although required under the terms of the mortgage,
Xxxxxx-Xxxxxxxxxx terrorism insurance is not being required by lender.
Eckerd Drug Store-Xxxxxxxx
--------------- --------------------------------- --------------------------------------------------------------------
III-2
EXHIBIT A
---------
Mortgage Loan Schedule
Mortgage
Loan
Number Property Name Address City State Zip Code County
-----------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxxx XX Various Hennepin
00.0 Xxxxxxxxxx Xxxxx Xxxx 0000 and 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Hennepin
Apartments and 0000 Xxxx 00xx Xxxxxx
16.2 Canterbury West Apartments 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxxxx XX 00000 Hennepin
18 Fox Lake Crossing Xxxxxxxxx Xxxxxx Xxxxxx 00 xxx 000 Xxx Xxxx XX 00000 Lake
00 Xxxxx Xxx Xxxxxx 000-0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000 San Diego
00 Xxxxxxxxx Xxxxxxx 00 Xxxxx Xxxxxxx 00 Xxxxxxxxx XX 00000 Monmouth
Shopping Center
24 Broad Creek Crossing 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000 Norfolk City
Shopping Center
00 Xxxxxxx Xxxxx 0000 Xxxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx
27 0000 Xxxxxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 Xxxxxx
00 Xxxxxxxxx Xxxxx 0000-0000 Xxxx Xxxxxxxx Xxxxxxxx Xxxx XX 00000 Xxxxxxx
Xxxx Xxxxxxxxx
00 Xxxx Xxxxxxxxxx 000-000 Xxxxxxx Xxxxxxxxx Xxxx Xxxx XX 00000 San Mateo
35 000 Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 Xxxx
00 Xxxxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000 Washington
Xxxxxxxxx Xxxxxxx
00 The Dell Apartments 000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx XX 00000 Westchester
53 The Grant Building 00 Xxxxx Xxxxxx, Xxxxxxxxx Xxxxxxx XX 00000 Xxxxxx
60 Brookline Barn Medical 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Xxxxxxx
Xxxxxxxx
00 Xxxxxxxxx Xxxxxxxx 0000 and 0000 Xxxxxxxxxx Xxxxx Xxxxxx XX 00000 Dallas
Apartments
69 Pace Station Shopping 0000 Xxxxxxx 00 Xxx Xxxxx XX 00000 Santa Xxxx
Center
72 Oakbrook Corners 0000-0000 Xxxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Gwinnett
73 Eckerd Drug 00000 Xxxxxxx Xxxxxxx Xxxxxxxxx XX 00000 Xx. Xxxxxxx
Xxxxx-Xxxxxxxxx
00 Xxxxxxxxx Xxxxx 0000 and 0000 Xxxxxxx Xxxxx Xx Xxxxx XX 00000 San Diego
Business Park
77 Walgreens - Little Rock 0000 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 Pulaski
81 Xxxxxxx Oaks 0000 Xxx Xxxx Xxxxxxxxx Xxx Xxxx XX 00000 Los Angeles
Professional Plaza
82 8500 Stemmons Building 0000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx XX 00000 Dallas
83 00 Xxxx Xxxxxxx Xxxxxx 00 Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000 Baltimore City
87 Eckerd Drug Store-Xxxxxxxx 0000 Xxxxxxxxxxx Xxxx Xxxxxx XX 00000 Ouachita
92 Eckerd Whitehouse 000 Xxxx Xxxx Xxxxxx Xxxxxxxxxx XX 00000 Xxxxx
93 Eckerd-Seneca 0000 Xxxx Xxxxx 0xx Xxxxxx Xxxxxx XX 00000 Oconee
96 Eckerd-Athens 000 Xxxx Xxxxx Xxxxxx XX 00000 Xxxxxxxxx
97 Walgreens - Pasadena 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxxx
100 Eckerds-Kings Mountain 000 Xxxx Xxxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 Cleveland
A-1
Original Remaining Original Remaining
Mortgage Cut-Off Term to Term to Maturity Amort Amort
Loan Date Loan Monthly P&I Grace Mortgage Number Unit of Maturity or Maturity or Date or Term Term
Number Balance($) Payments($) Days Rate(%) of Units Measure ARD (Mos.) ARD (Mos.) ARD (Mos.) (Mos.)
-----------------------------------------------------------------------------------------------------------------------------------
16 12,985,359.46 67,814.15 5 4.7500% 350 Units 120 119 1-Jul-2013 360 359
16.1 0 199 Units
16.2 0 151 Units
18 12,537,160.20 68,603.63 5 5.1600% 99,049 Sq. Ft. 108 107 1-Jul-2012 360 359
19 12,487,027.11 67,868.72 5 5.1000% 108,171 Sq. Ft. 120 119 1-Jul-2013 360 359
22 11,138,142.28 74,469.14 5 6.9500% 69,075 Sq. Ft. 120 107 1-Jul-2012 360 347
24 9,457,013.00 57,629.23 5 6.0900% 110,612 Sq. Ft. 120 113 1-Jan-2013 360 353
26 8,200,756.41 49,092.25 5 5.9300% 124,494 Sq. Ft. 120 114 1-Feb-2013 360 354
27 7,967,882.05 45,926.32 5 5.6000% 120,717 Sq. Ft. 108 104 1-Apr-2012 360 356
30 7,333,732.89 39,997.18 5 5.1200% 58,240 Sq. Ft. 120 118 1-Jun-2013 360 358
33 6,900,000.00 37,040.69 5 5.0000% 34,455 Sq. Ft. 120 120 1-Aug-2013 360 360
35 6,685,418.85 36,790.43 5 5.2000% 21,076 Sq. Ft. 108 106 1-Jun-2012 360 358
39 6,156,099.90 36,220.91 5 5.7600% 39,520 Sq. Ft. 120 113 1-Jan-2013 360 353
44 5,194,628.89 28,297.33 5 5.1200% 31 Units 120 119 1-Jul-2013 360 359
53 4,649,356.93 28,299.96 5 6.1000% 121,828 Sq. Ft. 120 115 1-Mar-2013 360 355
60 4,308,261.34 25,678.81 5 5.9200% 19,601 Sq. Ft. 120 117 1-May-2013 360 357
63 3,988,135.48 23,587.47 10 5.8000% 224 Units 60 52 1-Dec-2007 360 352
69 3,479,601.34 21,096.91 5 6.0500% 38,340 Sq. Ft. 120 114 1-Feb-2013 360 354
72 3,193,771.78 18,613.39 5 5.7200% 76,141 Sq. Ft. 120 118 1-Jun-2013 360 358
73 3,178,595.77 20,774.42 5 6.0800% 12,544 Sq. Ft. 108 103 1-Mar-2012 300 295
75 3,132,911.46 18,453.38 5 5.8000% 52,592 Sq. Ft. 120 116 1-Apr-2013 360 356
77 3,070,263.97 21,612.00 5 7.4700% 15,070 Sq. Ft. 120 106 1-Jun-2012 360 346
81 2,955,976.89 21,079.24 5 7.5500% 80,715 Sq. Ft. 120 99 1-Nov-2011 360 339
82 2,896,324.34 21,340.40 5 7.9400% 109,361 Sq. Ft. 120 104 1-Apr-2012 360 344
83 2,692,542.71 15,928.41 5 5.8500% 33,619 Sq. Ft. 120 117 1-May-2013 360 357
87 2,334,281.29 15,256.21 5 6.0800% 10,908 Sq. Ft. 108 103 1-Mar-2012 300 295
92 2,085,953.49 13,633.21 5 6.0800% 10,908 Sq. Ft. 108 103 1-Mar-2012 300 295
93 2,037,235.16 12,796.04 5 6.3800% 10,908 Sq. Ft. 120 113 1-Jan-2013 360 353
96 1,936,956.81 12,659.41 5 6.0800% 10,908 Sq. Ft. 108 103 1-Mar-2012 300 295
97 1,782,940.13 12,610.52 5 7.5200% 15,120 Sq. Ft. 120 106 1-Jun-2012 360 346
100 1,629,788.15 10,236.83 5 6.3800% 10,908 Sq. Ft. 120 113 1-Jan-2013 360 353
A-2
Mortgage Master Anticipated
Loan Ground Servicing ARD Repayment Additional
Number Lease Fee Rate Loans Date Interest Rate
-------------------------------------------------------------------------------
16 N 0.04000% N
16.1 N
16.2 N
18 N 0.04000% N
19 N 0.04000% N
22 N 0.04000% N
24 Y 0.12000% N
26 N 0.10000% N
27 N 0.04000% N
30 N 0.04000% N
33 N 0.04000% N
35 N 0.04000% N
39 N 0.10000% N
44 N 0.04000% N
53 N 0.04000% N
60 N 0.10000% N
63 N 0.04000% N
69 N 0.07000% N
72 N 0.04000% N
73 N 0.07000% N
75 Y 0.04000% N
77 N 0.04000% N
81 Y 0.12000% N
82 N 0.04000% N
83 N 0.10000% N
87 N 0.07000% N
92 N 0.07000% N
93 N 0.10000% N
96 N 0.07000% N
97 Y 0.04000% N
100 N 0.10000% N
A-3
Cross
Collateralized
Mortgage and Cross Interest
Loan Loan Environmental Defaulted Defeasance Secured Accrual
Number Originator Insurance Loan Flag Loan by LC Method
-----------------------------------------------------------------------------------------------
16 CGM Y N Actual/360
16.1 CGM
16.2 CGM
18 CGM Y N Actual/360
19 CGM Y N Actual/360
22 CGM Y N Actual/360
24 CGM Y N Actual/360
26 CGM Y N Actual/360
27 CGM Y N Actual/360
30 CGM Y N Actual/360
33 CGM Y N Actual/360
35 CGM Y N Actual/360
39 CGM Y N Actual/360
44 CGM Y N Actual/360
53 CGM Y N Actual/360
60 CGM Y N Actual/360
63 CGM Y Y N Actual/360
69 CGM Y N Actual/360
72 CGM Y N Actual/360
73 CGM Eckerd Portfolio 1 Y N Actual/360
75 CGM Y N Actual/360
77 CGM Walgreens Portfolio Y N Actual/360
81 CGM Y N Actual/360
82 CGM Y N Actual/360
83 CGM Y N Actual/360
87 CGM Eckerd Portfolio 1 Y N Actual/360
92 CGM Eckerd Portfolio 1 Y N Actual/360
93 CGM Eckerd Portfolio 2 Y N Actual/360
96 CGM Eckerd Portfolio 1 Y N Actual/360
97 CGM Walgreens Portfolio Y N Actual/360
100 CGM Eckerd Portfolio 2 Y N Actual/360
A-4
Initial
Annual Deposit
Mortgage Deposit to to Capital Initial Ongoing
Loan Replacement Improvements TI/LC TI/LC
Number Lockbox Reserve Reserve Escrow Footnote
-------------------------------------------------------------------------------
16 88,250 399,435
16.1
16.2
18 Soft, In Place 14,861 (1)
19 27,043 (1)
22 6,941 6,250 (1)
24
26 28,563 31,391 100,000 (1)
27 24,288 (1)
30 11,650 86,562 150,000 (1)
33 5,168 11,875 (1)
00 Xxxx, Xx-Xxxxx 3,161 (1)
39 3,952 15,119
44 7,750
53 23,652 150,000 (1)
60 Hard, Springing 3,920 (1)
63 Hard, Springing 67,200 357,969
69 5,751 (1)
72 22,842 38,750 233,500 (1)
00 Xxxx, Xx-Xxxxx 1,882 (1)
75 7,889 (1)
77 Hard, In-Place
81 16,143 (1)
82 21,532 (1)
83 6,703 (1)
00 Xxxx, Xx-Xxxxx 1,636 (1)
00 Xxxx, Xx-Xxxxx 1,636 (1)
93 1,091 (1)
00 Xxxx, Xx-Xxxxx 1,636 (1)
00 Xxxx, Xx-Xxxxx
100 1,091 (1)
A-5
