Exhibit 99.3
CGMRC Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of April
1, 2007 (the "Agreement"), between Citigroup Global Markets Realty Corp.
(together with its successors and permitted assigns hereunder, the "Seller") and
CWCapital Commercial Funding Corp. (together with its successors and permitted
assigns hereunder, the "Purchaser"), the Seller intends to sell and the
Purchaser intends to purchase certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans"), as identified on the schedule annexed
hereto as Exhibit A (the "Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together with
other assets, 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") to be identified as the CWCapital
Commercial Funding Corp., COBALT CMBS Commercial Mortgage Trust 2007-C2,
Commercial Mortgage Pass-Through Certificates, Series 2007-C2. One or more "real
estate mortgage investment conduit" ("REMIC") elections will be made with
respect to the Trust Fund. The Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as
of April 1, 2007, among the Purchaser, as depositor, Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, 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, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of April 2, 2007, with Wachovia Capital
Markets, LLC ("Wachovia"), Citigroup Global Markets Inc. ("Citi") and Deutsche
Bank Securities Inc. ("Deutsche" and, together with Wachovia and Citi, in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of April 2, 2007, with Wachovia and Citi (collectively, in
such capacity, the "Initial Purchasers"), whereby the Purchaser will sell to the
Initial Purchasers all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Initial Purchasers have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of the
date hereof.
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 accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $394,427,320.32 (the
"Citigroup Mortgage Loan Balance") as of the close of business on, with respect
to each Mortgage Loan, its Due Date in April, 2007 (each such date, the
applicable "Cut-off Date"), after giving effect to any and all payments of
principal due thereon on or before such date, whether or not received. The
purchase and sale of the Mortgage Loans shall take place on April 13, 2007, or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of (i) a cash amount equal to 101.388829% of the
Citigroup Mortgage Loan Balance, plus (ii) $718,252.15, 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 but does not include any deduction for any
fees and/or expenses incurred in connection with this transaction. The Aggregate
Purchase Price shall be paid to the Seller or its designee by wire transfer in
immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, 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, subject to the
rights of the holders of any related Companion Loans as specified in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby assumes such
Mortgage Loans, together with the rights and obligations related to such
Mortgage Loans as specified in the related Co-Lender Agreement. The Mortgage
Loan Schedule, as it may be amended, shall conform to the requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights of
the holders of any related Companion Loans, as applicable, 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 for each Mortgage Loan, but
collected after such date, shall, subject to the rights of the holders of any
related Companion Loans, as applicable, belong to, and be promptly remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit with, or cause to be delivered to
and deposited with, the Trustee a Mortgage File for each Mortgage Loan in
accordance with the terms of, and conforming to the requirements set forth in,
the Pooling and Servicing Agreement; provided that, with respect to any
Non-Serviced Trust Loan, the preceding delivery requirements will be satisfied
by delivery of the original Mortgage Note (and all intervening endorsements)
related to such Non-Serviced Trust Loan and a copy of the "mortgage file"
delivered under the applicable Lead PSA. If the Seller cannot deliver or cause
to be delivered the documents and/or instruments referred to in clauses (a)(ii),
(a)(iii), (a)(vi) (if recorded) and (a)(viii) of the definition of "Mortgage
File" solely because of delay caused by the public recording or filing office
where such document or instrument has been delivered for recordation, the Seller
shall deliver to the Trustee a copy of the original, certified by the Seller to
be a true and complete copy of the original thereof submitted for recording or
filing. Concurrently with such delivery, the Seller shall deliver, or cause to
be delivered, to the Master Servicer and the Special Servicer copies of the
Mortgage Note, Mortgage(s) and any reserve and cash management agreements with
respect to each Mortgage Loan (other than a Non-Serviced Trust Loan) for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan (other than a Non-Serviced Trust Loan)
for which a Mortgage File is required to be delivered to the Trustee, the Seller
shall bear the reasonable out-of-pocket costs and expenses related to recording
or filing, as the case may be, in the appropriate public office for real
property records or Uniform Commercial Code financing statements, as
appropriate, each related assignment of Mortgage and assignment of Assignment of
Leases, in favor of the Trustee referred to in clause (a)(iv) of the definition
of "Mortgage File" and each related UCC-2 and UCC-3 assignment referred to in
clause (a)(viii) of the definition of "Mortgage File." If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all documents
and records that (i) relate to the servicing and administration of the Mortgage
Loans that are Serviced Loans, (ii) are reasonably necessary for the ongoing
administration and/or servicing of the Mortgage Loans that are Serviced Loans
and (iii) are in possession or control of the Seller, together with (x) all
unapplied Escrow Payments and Reserve Funds in the possession or under control
of the Seller that relate to the Mortgage Loans that are Serviced Loans and (y)
a statement indicating which Escrow Payments and Reserve Funds are allocable to
such Serviced Loans), provided that the Seller shall not be required to deliver
any draft documents, privileged or other internal communications, credit
underwriting, due diligence analyses or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Seller shall provide, or cause to be provided, information
necessary for the Master Servicer to produce the initial data with respect to
each Mortgage Loan for the CMSA Financial File and the CMSA Loan Periodic Update
File that are required to be prepared by the Master Servicer pursuant to the
Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
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 duly organized, validly existing and
in good standing under the laws of the State of New York, is duly
qualified as a foreign organization in good standing in all jurisdictions
to the extent such qualification is necessary to hold and sell the
Mortgage Loans or otherwise comply with its obligations under this
Agreement, except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations
hereunder, and possesses all requisite authority and power 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 (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general,
and (B) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's organizational documents, (B) violate
any law or regulation or any administrative decree or order to which the
Seller is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound.
(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 would
reasonably be expected to 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, in the Seller's reasonable and
good faith judgment, 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 organizational document 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 and delivery of this Agreement by the
Seller or the performance by the Seller of its obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans (other than
the Non-Serviced Trust Loans), as contemplated by Section 2(d), no
consent, approval, authorization or order of, registration or filing with,
or notice to, 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; and no bulk sale law applies to such
transactions.
(vii) No litigation is pending or, to the best of 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.
(viii) The Seller intends to treat the transfer of the Mortgage
Loans to the Purchaser as a sale for accounting and tax purposes. In
connection with the foregoing, the Seller shall cause all of its records
to reflect such transfer as a sale (as opposed to a secured loan). 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. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially
all of the assets of the Seller. The Seller does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B attached hereto, except as otherwise set forth on Exhibit C
attached hereto.
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:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
(A) bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) 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 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.
(v) 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 provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
(vi) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or 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 requires or will require the
consent of any third person or constitutes or will constitute a default
under (A) any term or provision of the Purchaser's certificate of
incorporation or bylaws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Purchaser is a
party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree or any court or
governmental authority having jurisdiction over the Purchaser or its
assets.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If the Seller discovers or receives notice in accordance with
Section 10 hereof of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the related
Mortgaged Property or the interests of the Purchaser in such Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material Document
Defect" or a "Material Breach," as the case may be), then (subject to Section
5(b)) the Seller shall, within 90 days after its discovery or receipt of such
notice of such Material Document Defect or Material Breach (or, in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days after any party discovering such Material Document Defect or
Material Breach) (such 90-day period, in either case, the "Initial Resolution
Period"), (i) cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, which cure shall include payment of any
Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or any related REO Property, or in the case of any REO
Property related to a Loan Group, the Seller's interest therein) from, and in
accordance with the directions of, the Purchaser or its designee, at a price
equal to the Purchase Price; provided that if (A) any such Material Breach or
Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a Qualified
Mortgage, (B) such Material Breach or Material Document Defect, as the case may
be, is capable of being cured but not within the applicable Initial Resolution
Period, (C) the Seller has commenced and is diligently proceeding with the cure
of such Material Breach or Material Document Defect, as the case may be, within
the applicable Initial Resolution Period and (D) the Seller shall have delivered
to the Purchaser a certification executed on behalf of the Seller by an officer
thereof confirming that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the applicable Initial
Resolution Period, setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 days beyond the end of the
applicable Initial Resolution Period, then the Seller shall have such additional
90-day period (the "Resolution Extension Period") to complete such cure or,
failing such, to repurchase the affected Mortgage Loan (or the related Mortgaged
Property) unless, solely in the case of a Material Document Defect, (x) the
Mortgage Loan is, at the end of the Initial Resolution Period, then a Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result
of a monetary default or as described in clause (e), clause (f) or clause (g) of
the definition of "Specially Serviced Mortgage Loan" in the Pooling and
Servicing Agreement and (y) the Material Document Defect was identified in a
certification delivered to Seller by the Trustee pursuant to Section 2.02 of the
Pooling and Servicing Agreement not less than 90 days prior to the delivery of
the notice of such Material Document Defect; and provided, further, that, if any
such Material Document Defect is still not cured after the initial 90-day period
and any such additional 90-day period solely due to the failure of the Seller to
have received the recorded document, then the Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Document Defect so long as the Seller certifies to the Purchaser every 30 days
thereafter that the Document Defect is still in effect solely because of its
failure to have received the recorded document or a copy thereof and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Any such repurchase of a
Mortgage Loan shall be on a whole loan, servicing released basis. The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Breach or Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Provided that if the Master Servicer has notice of such Material
Document Defect or Material Breach, the Master Servicer shall notify the Seller
if the related Mortgage Loan becomes a Specially Serviced Mortgage Loan during
any applicable cure periods. Any of the following document defects shall be
conclusively presumed to be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, together with the
endorsements referred to in clause (a)(i) of the definition of "Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and indemnity
with respect to the missing Mortgage Note and any missing endorsement that
appears to be regular on its face, (b) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of the original executed Mortgage
or a copy of such Mortgage certified by the local authority with which the
Mortgage was recorded, in each case with evidence of recording thereon, that
appears to be regular on its face, unless there is included in the Mortgage File
a copy of the executed Mortgage and a certificate stating that the original
signed Mortgage was sent for recordation, (c) other than with respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the original or a
copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (d) other
than with respect to a Non-Serviced Trust Loan, the absence from the Mortgage
File of any intervening assignments required to create a complete chain of
assignment to the Trustee on behalf of the Trust and a certificate stating that
the original intervening assignments were sent for recordation, unless there is
included in the Mortgage File a certified copy of the intervening assignment,
(e) other than with respect to a Non-Serviced Trust Loan, the absence from the
Mortgage File of a copy of the ground lease with respect to any leasehold
mortgages or (f) other than with respect to a Non-Serviced Trust Loan, the
absence from the Servicing File of any original letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties, and (z) the
applicable Material Breach of Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall use reasonable
efforts, subject to the terms of the related Mortgage Loans, to prepare and, to
the extent necessary and appropriate, have executed by the related Mortgagor and
record, such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loans in such Cross-Collateralized Group that are to be repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination or release will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) a written confirmation from
each Rating Agency that such termination or release will not cause an Adverse
Rating Event to occur with respect to any Class of Certificates, (ii) the debt
service coverage ratio for the four preceding calendar quarters for all of the
Mortgage Loans relating to such Cross-Collateralized Group remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder (if one is
acting) has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
Seller within 10 Business Days of the Directing Holder's receipt of a written
request for such consent); and provided, further, that the Seller may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage Loan in lieu
of terminating the cross-collateralization or a release of the affected
Mortgaged Properties from the cross-collateralization of the Mortgage Loan. In
the event that the cross-collateralization of any Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan secured by a
portfolio of Mortgaged Properties is released pursuant to this paragraph, the
Seller may elect either to repurchase only the affected Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All reasonable
costs and expenses incurred by the Purchaser or its designee pursuant to this
paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have executed and
delivered such instruments of endorsement, transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall deliver to the
Seller all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller any escrow
payments or reserve funds held by it, or on its behalf, in respect of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or other
liquidation pursuant to, and in accordance with, the Pooling and Servicing
Agreement shall not constitute a defense to any repurchase claim disputed by the
Seller nor shall such modification change the Purchase Price due from the Seller
for any repurchase claim. In the event of any such modification, the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the Seller is
required to or elects to repurchase such Mortgage Loan in accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or foreclosure
upon such Mortgage Loan and sale of the successor REO Property, shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the Seller and (ii) representation or warranty of any kind (either expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or successor REO
Property, which claim shall be made in accordance with this Section 5. If a
court of competent jurisdiction issues a final order that the Seller is or was
obligated to repurchase the related Mortgage Loan or the successor REO Loan or
the Seller otherwise accepts liability, then, after the expiration of any
applicable appeal period, but in no event later than the termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing Agreement, the
Seller will be obligated to pay to the Trust the difference between (i) any
Liquidation Proceeds received upon such liquidation net of Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in such action
shall be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the Seller
set forth in Section 5(a) to cure any Material Breach or Material Document
Defect or to repurchase the affected Mortgage Loan constitute the sole remedies
available to the Purchaser with respect to any Breach or Document Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph 38 of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear reasonable costs and expenses associated with a defeasance, as
set forth in paragraph 38 (any such costs or expenses, referred to herein as
"Covered Costs"), then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided that
such payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser and the
Trustee with any Additional Form 10-D Disclosure and any Additional Form 10-K
Disclosure set forth next to the Purchaser's name on Exhibit P and Exhibit Q of
the Pooling and Servicing Agreement within the time periods set forth in the
Pooling and Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement, shall be true and correct in all material respects as of the
Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser and the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) 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;
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
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 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that 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;
(e) An Officer's Certificate from an officer of the Seller, dated
the Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Indemnification Agreement, 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 or certificates are their genuine signatures, or
such other statement relating to incumbency that is acceptable to the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller issued by the Secretary of
State of the State of Delaware as of a recent date;
(g) A favorable opinion of counsel to the Seller, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement, together
with such other opinions of such counsel as may be required by the Rating
Agencies in connection with the transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller, subject
to customary exceptions and carveouts, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement; and
(i) A letter of counsel of the Seller, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to the
Underwriters, to the effect that nothing has come to such counsel's attention
that would lead such counsel to believe that the Prospectus Supplement as of the
date thereof or as of the Closing Date contains, with respect to the Seller or
the Mortgage Loans, any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein relating to the
Seller or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
SECTION 8. Costs. The reasonable out-of-pocket costs and expenses
incurred by the Seller, each other mortgage loan seller, the Purchaser, the
Underwriters and the Initial Purchasers in connection with the securitization of
the Mortgage Loans and the other transactions contemplated by this Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement shall be
payable as set forth in a separate writing among such parties on the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto agree
that it is their express intent 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
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) 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; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, 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 applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons 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. 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 on Schedule A hereof or, as to either party, at such other address as
shall be designated by such party in a notice hereunder to the other party.
Except as otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
SECTION 11. 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) until the
termination of the Pooling and Servicing Agreement pursuant to the terms
thereof.
SECTION 12. 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 13. 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 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their respective successors and permitted assigns.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller has
consented to such amendment or modification in writing.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
CITIGROUP GLOBAL MARKETS REALTY CORP.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By:
----------------------------------
Name:
Title:
PURCHASER
CWCAPITAL COMMERCIAL FUNDING CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
SCHEDULE A
Notices
Seller:
-------
Address for Notices:
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
Purchaser:
----------
Address for Notices:
CWCapital Commercial Funding Corp.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
EXHIBIT A
Mortgage Loan Schedule
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
EXHIBIT A
CITIGROUP
Mortgage
Loan Number Property/Name Address City State Zip Code
----------- --------------------------------- ------------------------------------------ -------------- ----- --------
0 Xxx Xxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxx XX 00000
4.01 Ala Moana Center 0000 Xxx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000
4.02 Ala Moana Building 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
4.03 Ala Moana Pacific Center 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxx XX 00000
4.04 Ala Moana Plaza 000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
5 One Xxxxxx Xxxxxx Xxx Xxxxxx Xxxxxx Xxxxxx XX 00000
10 One and Three Long Wharf Drive One and Three Xxxx Xxxxx Xxxxx Xxx Xxxxx XX 00000
18 2175 K Street 0000 X Xxxxxx Xxxxxxxxx Xxxxxxxxxx XX 00000
22 Summit at Southpoint 0000-0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxxxxx XX 00000
00 Xxxxxxxxx Xxx - Xxxxxxx, XX 00 Xxxxxxxx Xxxxxxx Xxxxxxx XX 00000
35 Lowe's Home Improvement Center 000 XxXxxx Xxxxxxxxx Xxxxxxxx XX 00000
46 Texas Office-Warehouse Portfolio Various Various TX Various
46.01 0000 Xxxxxx Xxxxx 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
46.02 0000 Xxxx Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxx Xxxxx Xxxxxx XX 00000
46.03 0000 Xxxxx Xxxxxxx 00 0000 Xxxxx Xxxxxxx 00 Xxxxxxx XX 00000
53 Park Centre VI 000-0000 Xxxx Xxxxxx Xxxxxxxxx Xxxxx XX 00000
00 Xxxxxxxxx XX - Xxxxxxx, XX 000-000 Xxxx Xxxx Xxxxxx Xxxxxxxx XX 00000
74 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxx XX 00000
84 0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
86 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
00 Xxxxxxxx Xxxxx II 0000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxx XX 00000
000 Xxxxxxxx Xxxxx I 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000
000 Xxxxxxxx Xxxx 0000 Xxxx X Xxxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxxx Business Center 8755-8765 Xxxxx Road, 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000
118 000 Xxxxxxxxxx Xxxxx Xxxxx 000 Xxxxxxxxxx Xxxxx Xxxxx Xxxxxxx XX 00000
132 Block 76 0000 Xxxx Xxxxxx Xxxxxxx XX 00000
000 Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxx Xxxxx Xxx Xxxxx Xxxxx XX 00000
Remaining Amort
Remaining Term Term (Mos.) for
Mortgage Cut-Off Date Monthly P&I to Maturity or Maturity Balloon Interest
Loan Number Loan Balance ($) Payments ($) Mortgage Rate ARD (Mos.) Date or ARD Mortgage Loan Accrual Method
----------- ---------------- ------------ ------------- --------------- ----------- --------------- --------------
4 100,000,000 IO 5.60275% 53 09/01/11 Actual/360
4.01
4.02
4.03
4.04
5 82,000,000 481,921 5.81500% 117 01/06/17 360 Actual/360
10 37,500,000 217,531 5.69500% 118 02/06/17 360 Actual/360
18 28,500,000 IO 5.80550% 58 02/06/12 Actual/360
22 23,700,000 136,505 5.63000% 117 01/06/17 360 Actual/360
29 18,825,000 115,542 6.22000% 117 01/06/17 360 Actual/360
35 17,305,575 108,701 6.29000% 163 11/11/20 343 Actual/360
46 13,700,000 80,359 5.79700% 119 03/06/17 360 Actual/360
46.01
46.02
46.03
53 11,350,000 66,452 5.78000% 116 12/06/16 360 Actual/360
57 10,900,000 64,019 5.80900% 119 03/06/17 360 Actual/360
74 7,665,000 45,518 5.91100% 119 03/06/17 360 Actual/360
84 6,629,228 38,977 5.79000% 117 01/06/17 357 Actual/360
86 6,500,000 36,947 5.51000% 119 03/06/17 360 Actual/360
96 5,500,000 IO 5.39100% 117 01/06/17 Actual/360
101 5,300,000 IO 5.39100% 117 01/06/17 Actual/360
102 5,250,000 32,070 6.17500% 117 01/06/17 360 Actual/360
108 4,550,000 26,930 5.88000% 60 04/06/12 360 Actual/360
118 3,987,517 23,457 5.79500% 117 01/06/17 357 Actual/360
132 2,900,000 IO 5.97500% 118 02/06/17 Actual/360
140 2,365,000 13,592 5.61000% 120 04/06/17 360 Actual/360
Master Collateralized and
Mortgage Loan Administrative Servicing Fee Mortgage Loan Defeasance Cross Defaulted
Loan Number Cost Rate Rate Ground Lease Seller Originator Loan Loan Flag
----------- ------------------- ------------- ------------ ------------- -------------- ---------- ------------------
4 0.02091% 0.02000% Y CGM CGM Y N
4.01 N
4.02 N
4.03 Y
4.04 N
5 0.02091% 0.02000% N CGM CGM Y N
10 0.02091% 0.02000% N CGM CGM Y N
18 0.02091% 0.02000% N CGM CGM Y N
22 0.02091% 0.02000% N CGM CGM Y N
29 0.02091% 0.02000% Y CGM CGM Y N
35 0.02091% 0.02000% N CGM CGM Y N
46 0.03091% 0.03000% N CGM CGM Y N
N
46.02 N
46.03 N
53 0.09091% 0.09000% N CGM CGM Y N
57 0.02091% 0.02000% N CGM CGM Y N
74 0.02091% 0.02000% N CGM CGM Y N
84 0.09091% 0.09000% N CGM CGM Y N
86 0.02091% 0.02000% N CGM CGM Y N
96 0.07091% 0.07000% N CGM CGM Y N
101 0.07091% 0.07000% N CGM CGM Y N
102 0.02091% 0.02000% N CGM CGM Y N
108 0.07091% 0.07000% N CGM CGM N N
118 0.06091% 0.06000% N CGM CGM Y N
132 0.02091% 0.02000% N CGM CGM Y N
140 0.09091% 0.09000% N CGM CGM Y N
Letter of If ARD loan,
Mortgage Credit ARD Anticipated Additional Serviced Loan
Loan Number In-Place Loan Repayment Date Interest Rate Combination?
----------- ---------- ------- -------------- -------------- -------------
4 N N N
4.01
4.02
4.03
4.04
5 N N N
10 Y N N
18 N N N
22 N N N
29 N N N
35 N N N
46 N N N
46.01
46.02
46.03
00 X X X
00 X X X
74 N N Y
84 N N N
86 N N N
96 N N N
101 N N N
102 N N N
Greater of
interest rate
plus 2% or
Annualized
108 N Y 04/06/12 Yield plus 3% N
118 N N N
Greater of
interest rate
plus 2% or
Annualized
132 N Y 02/06/17 Yield plus 3% N
140 N N N
EXHIBIT B
Mortgage Loan Representations and Warranties
1) Mortgage Loan Schedule. The information set forth in the Mortgage Loan
Schedule is complete, true and correct in all material respects as of the date
of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a whole
loan and not a participation interest in a mortgage loan. Immediately prior to
the transfer to the Purchaser of the Mortgage Loans, the Seller had good title
to, and was the sole owner of, each Mortgage Loan. The Seller has full right,
power and authority to transfer and assign each of the Mortgage Loans to or at
the direction of the Purchaser and has validly and effectively conveyed (or
caused to be conveyed) to the Purchaser or its designee all of the Seller's
legal and beneficial interest in and to the Mortgage Loans free and clear of any
and all pledges, liens, charges, security interests and/or other encumbrances.
The sale of the Mortgage Loans to the Purchaser or its designee does not require
the Seller to obtain any governmental or regulatory approval or consent that has
not been obtained.
3) Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and no
Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in clauses (B),
(C) or (D) of the definition of "Permitted Liens" (as defined below),
individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use of
the Mortgaged Property, or the current ability of the Mortgaged Property to
generate operating income sufficient to service the Mortgage Loan debt. The
related assignment of such Mortgage executed and delivered in favor of the
Trustee is in recordable form and constitutes a legal, valid and binding
assignment, sufficient to convey to the assignee named therein all of the
assignor's right, title and interest in, to and under such Mortgage. Such
Mortgage, together with any separate security agreements, chattel mortgages or
equivalent instruments, establishes and creates a valid and, subject to the
exceptions set forth in paragraph 13 below, enforceable security interest in
favor of the holder thereof in all of the related Mortgagor's personal property
used in, and reasonably necessary to operate, the related Mortgaged Property. In
the case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property that
a prudent mortgage lender making a similar Mortgage Loan would deem reasonably
necessary to operate the related Mortgaged Property as it is currently being
operated. A Uniform Commercial Code financing statement has been filed and/or
recorded in all places necessary to perfect a valid security interest in
personal property located on the Mortgaged Property that is owned by the
Mortgagor and either (i) is reasonably necessary to operate the Mortgaged
Property or (ii) is (as indicated in the appraisal obtained in connection with
the origination of the related Mortgage Loan) material to the value of the
Mortgaged Property, to the extent a security interest may be so created therein,
and such security interest is a first priority security interest, subject to any
prior purchase money security interest or a sale and leaseback financing
arrangement in such personal property and any personal property leases
applicable to such personal property. Notwithstanding 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 Uniform Commercial Code financing statements
are required in order to effect such perfection.
"Permitted Liens" shall mean, (A) the lien for current real estate taxes and
assessments not yet due and payable, (B) covenants, conditions and restrictions,
rights of way, easements and other matters that are of public record and/or are
referred to in the related mortgagee's title insurance policy, (C) exceptions
and exclusions specifically referred to in such mortgagee's title insurance
policy, (D) other matters to which like properties are commonly subject and (E)
the lien created through the cross-collateralization of the subject Mortgage
Loan with another Mortgage Loan.
5) Assignment of Leases and Rents. The Assignment of Leases related to and
delivered in connection with each Mortgage Loan establishes and creates a valid,
subsisting and, subject to the exceptions set forth in paragraph 13 below,
enforceable first priority lien and first priority security interest in the
related Mortgagor's interest in all leases, sub-leases, licenses or other
agreements pursuant to which any person is entitled to occupy, use or possess
all or any portion of the real property subject to the related Mortgage, and
each assignor thereunder has the full right to assign the same. The related
assignment of any Assignment of Leases not included in a Mortgage has been
executed and delivered in favor of the Trustee and is in recordable form and
constitutes a legal, valid and binding assignment, sufficient to convey to the
assignee named therein all of the assignor's right, title and interest in, to
and under such Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and the
related Mortgaged Property has not been released from the lien of such Mortgage,
in whole or in part (except for partial reconveyances of real property that are
set forth on Schedule B-1 to this Exhibit B), nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release, in any manner that, in each case, materially adversely
affects the value of the related Mortgaged Property. None of the terms of any
Mortgage Note, Mortgage or Assignment of Leases has been impaired, waived,
altered or modified in any respect, except by written instruments, all of which
are included in the related Mortgage File since the date upon which the due
diligence file related to the applicable Mortgage Loan was delivered to
CWCapital Investments LLC, or an affiliate.
7) Condition of Property; Condemnation. (i) With respect to the Mortgaged
Properties securing the Mortgage Loans that were the subject of an engineering
report within 18 months prior to the Cut-off Date as set forth on Schedule B-1
to this Exhibit B, each Mortgaged Property is, to the Seller's knowledge, free
and clear of any damage (or adequate reserves therefor have been established)
that would materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an engineering report within 18
months prior to the Cut-off Date as set forth on Schedule B-1 to this Exhibit B,
each Mortgaged Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor have
been established) and each Mortgaged Property is free of structural defects, in
each case, that would materially and adversely affect its value as security for
the related Mortgage Loan as of the date hereof. The Seller has received no
notice of the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
the Mortgage Loans), as of the date of the origination of each Mortgage Loan,
all of the material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such property and
do not encroach on any third party easements on the Mortgaged Property, except
for encroachments that are insured against by the mortgagee's title insurance
policy referred to herein or that do not materially and adversely affect the
value or marketability of such Mortgaged Property, and no improvements on
adjoining properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such Mortgaged
Property, except those encroachments that are insured against by the Title
Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an American Land
Title Association (or an equivalent form of) mortgagee's title insurance policy
or a marked-up title insurance commitment (on which the required premium has
been paid) which evidences such title insurance policy (the "Title Policy") in
the original principal amount of the related Mortgage Loan after all advances of
principal. Each Title Policy insures that the related Mortgage is a valid first
priority lien on such Mortgaged Property, subject only to Permitted Liens. Each
Title Policy (or, if it has yet to be issued, the coverage to be provided
thereby) is in full force and effect, all premiums thereon have been paid, and
no material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or omission,
anything that would materially impair the coverage under such Title Policy.
Immediately following the transfer and assignment of the related Mortgage Loan
to the Trustee, such Title Policy (or, if it has yet to be issued, the coverage
to be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction in
which the related Mortgaged Property is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect thereto.
With respect to each Mortgage Loan, any and all requirements as to completion of
any on-site or off-site improvement and as to disbursements of any funds
escrowed for such purpose that were to have been complied with on or before the
Closing Date have been complied with, or any such funds so escrowed have not
been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each Mortgage
Loan, together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph 13) such as to
render the rights and remedies of the holder thereof adequate for the practical
realization against the related Mortgaged Property of the principal benefits of
the security intended to be provided thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust, (i) a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage, and (ii) no fees or expenses are
payable to such trustee by the Seller, the Purchaser or any transferee thereof
except in connection with a trustee's sale after default by the related
Mortgagor or in connection with any full or partial release of the related
Mortgaged Property or related security for the related Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within 18
months prior to the Cut-off Date as set forth on Schedule B-1 to this
Exhibit B, an environmental site assessment (meeting American Society for
Testing and Materials standards), or an update of a previous such report,
was performed with respect to each Mortgaged Property in connection with
the origination or the sale of the related Mortgage Loan, a report of each
such assessment (or the most recent assessment with respect to each
Mortgaged Property) (an "Environmental Report") has been delivered to the
Purchaser, and the Seller has no knowledge of any material and adverse
environmental condition or circumstance affecting any Mortgaged Property
that was not disclosed in such report. Each Mortgage requires the related
Mortgagor to comply with all applicable federal, state and local
environmental laws and regulations. Where such assessment disclosed the
existence of a material and adverse environmental condition or
circumstance affecting any Mortgaged Property, (i) a party not related to
the Mortgagor was identified as the responsible party for such condition
or circumstance, (ii) a party related to the Mortgagor having financial
resources reasonably estimated to be adequate to address the situation is
required to take action, or (iii) environmental insurance covering such
condition was obtained or must be maintained until the condition is
remediated, or (iv) the related Mortgagor was required either to provide
additional security that was deemed to be sufficient by the originator in
light of the circumstances and/or to establish an operations and
maintenance plan. In the case of each Mortgage Loan set forth on Schedule
B-1 to this Exhibit B, (i) such Mortgage Loan is the subject of a Secured
Creditor Impaired Property Policy, issued by the issuer set forth on
Schedule B-1 (the "Policy Issuer") and effective as of the date thereof
(the "Environmental Insurance Policy"), (ii) the Environmental Insurance
Policy is in full force and effect, (iii)(a) a property condition or
engineering report was prepared, if the related Mortgaged Property was
constructed prior to 1985, with respect to asbestos containing materials
("ACM") and, if the related Mortgaged Property is a multifamily property,
with respect to radon gas ("RG") and lead based paint ("LBP") and (b) if
such report disclosed the existence of a material and adverse LBP, ACM or
RG environmental condition or circumstance affecting the related Mortgaged
Property, the related Mortgagor (A) was required to remediate the
identified condition prior to closing the Mortgage Loan or provide
additional security or establish with the mortgagee a reserve from loan
proceeds, in an amount deemed to be sufficient by the Seller, for the
remediation of the problem, and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iv) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge of
any material and adverse environmental condition or circumstance affecting
the Mortgaged Property (other than the existence of LBP, ACM or RG) that
was not disclosed to the Policy Issuer in one or more of the following:
(a) the application for insurance, (b) a borrower questionnaire that was
provided to the Policy Issuer, or (c) an engineering or other report
provided to the Policy Issuer, and (v) the premium of any Environmental
Insurance Policy has been paid through the maturity of the policy's term
and the term of such policy extends at least five years beyond the
maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment within
18 months prior to the Cut-off Date as set forth on Schedule B-1 to this
Exhibit B, (i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially and
adversely affected or (2) under applicable federal, state or local law,
(a) such Hazardous Material could be required to be eliminated at a cost
materially and adversely affecting the value of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished or
transferred, or (b) the presence of such Hazardous Material could (upon
action by the appropriate governmental authorities) subject the owner of
such Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related or
similar materials and any other substance or material as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Federal Water Pollution Control Act as amended (33 U.S.C.
xx.xx. 1251 et seq.), the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.)
and any regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other agreement
that evidences or secures such Mortgage Loan and was executed by or on behalf of
the related Mortgagor is the legal, valid and binding obligation of the maker
thereof (subject to any non-recourse provisions contained in any of the
foregoing agreements and any applicable state anti-deficiency or market value
limit deficiency legislation), enforceable in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally, and
by general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related Mortgagor
with respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant to the
related Mortgage to be, insured by (a) a fire and extended perils insurance
policy providing coverage against loss or damage sustained by reason of fire,
lightning, windstorm, hail, explosion, riot, civil commotion, aircraft, vehicles
and smoke, and, to the extent required as of the date of origination by the
originator of such Mortgage Loan consistent with its normal commercial mortgage
lending practices, against other risks insured against by persons operating like
properties in the locality of the Mortgaged Property in an amount not less than
the lesser of the principal balance of the related Mortgage Loan and the
replacement cost of the Mortgaged Property, and contains no provisions for a
deduction for depreciation, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property;
(b) a business interruption or rental loss insurance policy, in an amount at
least equal to six months of operations of the Mortgaged Property; (c) a flood
insurance policy (if any portion of buildings or other structures on the
Mortgaged Property are located in an area identified by the Federal Emergency
Management Agency as having special flood hazards and the Federal Emergency
Management Agency requires flood insurance to be maintained); (d) a
comprehensive general liability insurance policy in amounts as are generally
required by commercial mortgage lenders, and in any event not less than $1
million per occurrence; and (e) if the Mortgaged Property is located in Florida
or within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama,
Georgia, North Carolina or South Carolina, windstorm insurance in an amount at
least equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged Property.
An architectural or engineering consultant has performed an analysis of each of
the Mortgaged Properties located in seismic zone 3 or 4 in order to evaluate the
structural and seismic condition of such property, for the sole purpose of
assessing the probable maximum loss ("PML") for the Mortgaged Property in the
event of an earthquake. In such instance, the PML was based on a 475-year
lookback with a 10% probability of exceedance in a 50-year period. If a seismic
report concluded that the PML on a Mortgaged Property would exceed 20% of the
amount of the replacement costs of the improvements, earthquake insurance by an
insurer rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or Fitch. Such insurance policy contains a standard
mortgagee clause that names the mortgagee as an additional insured in the case
of liability insurance policies and as a loss payee in the case of property
insurance policies and requires prior notice to the holder of the Mortgage of
termination or cancellation. No such notice has been received, including any
notice of nonpayment of premiums, that has not been cured. Each Mortgage
obligates the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to maintain
such insurance at the Mortgagor's cost and expense and to seek reimbursement
therefor from such Mortgagor. Each Mortgage provides that casualty insurance
proceeds will be applied (a) to the restoration or repair of the related
Mortgaged Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair being
paid to the Mortgagor, or (c) to the reduction of the principal amount of the
Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no delinquent
or unpaid taxes, assessments (including assessments payable in future
installments) or other outstanding charges affecting any Mortgaged Property that
are or may become a lien of priority equal to or higher than the lien of the
related Mortgage. For purposes of this representation and warranty, real
property taxes and assessments shall not be considered unpaid until the date on
which interest or penalties would be first payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion thereof
is the subject of, and no Mortgagor under a Mortgage loan is, a debtor in any
state or federal bankruptcy or insolvency or similar proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole or in
part by the interest of a Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease"), by the related Mortgagor's interest in
the Ground Lease but not by the related fee interest in such Mortgaged Property
(the "Fee Interest"), and as to such Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not prohibit
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Liens;
iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease or if such Ground Lease is rejected
in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury regulation
section 1.860G-2(a), and the related Mortgaged Property, if acquired in
connection with the default or imminent default of such Mortgage Loan, would
constitute "foreclosure property" within the meaning of Section 860G(a)(8)
(without regard to Section 856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or paid
have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage Loan has
advanced funds or induced, solicited or knowingly received any advance of funds
from a party other than the owner of the related Mortgaged Property, directly or
indirectly, for the payment of any amount required by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear of any
and all mechanics' and materialmen's liens that are prior or equal to the lien
of the related Mortgage, and no rights are outstanding that under law could give
rise to any such lien that would be prior or equal to the lien of the related
Mortgage except, in each case, for liens insured against by the Title Policy
referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23) Cross-collateralization. Except as set forth on Schedule B-1 to this
Exhibit B, no Mortgage Loan is cross-collateralized or cross-defaulted with any
loan other than one or more other Mortgage Loans.
24) Releases of Mortgaged Property. Since origination, no material portion
of the related Mortgaged Property has been released from the lien of the related
Mortgage, in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be provided
by such Mortgage. The terms of the related Mortgage or related Mortgage Loan
documents do not provide for release of any material portion of the Mortgaged
Property from the lien of the Mortgage except (a) in consideration of payment
therefor of not less than 125% of the related allocated loan amount of such
Mortgaged Property, (b) upon payment in full of such Mortgage Loan, (c) upon
defeasance permitted under the terms of such Mortgage Loan by means of
substituting for the Mortgaged Property (or, in the case of a Mortgage Loan
secured by multiple Mortgaged Properties, one or more of such Mortgaged
Properties) "government securities", as defined in the Investment Company Act of
1940, as amended, sufficient to pay the Mortgage Loan in accordance with its
terms, (d) upon substitution of a replacement property with respect to such
Mortgage Loan as set forth on Schedule B-1 hereto, (e) where release is
conditional upon the satisfaction of certain objective underwriting and legal
requirements, the satisfaction of which would be acceptable to a reasonably
prudent commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property or
(f) releases of unimproved out-parcels or other portions of the Mortgaged
Property which will not have a material adverse effect on the underwritten value
of the security for the Mortgage Loan and which were not afforded any value in
the appraisal obtained at the origination of the Mortgage Loan.
25) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the mortgagee or provides for negative
amortization (except that the ARD Loan may provide for the accrual of interest
at an increased rate after the Anticipated Repayment Date) or for any contingent
or additional interest in the form of participation in the cash flow of the
related Mortgaged Property.
26) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of notice, or
both, would constitute any of the foregoing) under the documents evidencing or
securing the Mortgage Loan, in any such case to the extent the same materially
and adversely affects the value of the Mortgage Loan and the related Mortgaged
Property; 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 this Exhibit B.
27) Inspections. The Seller (or if the Seller is not the originator, the
originator of the Mortgage Loan) has inspected or caused to be inspected each
Mortgaged Property in connection with the origination of the related Mortgage
Loan.
28) Local Law Compliance. Based on due diligence considered reasonable by
prudent commercial mortgage lenders in the lending area where the Mortgaged
Property is located, the improvements located on or forming part of each
Mortgaged Property comply with applicable zoning laws and ordinances, or
constitute a legal non-conforming use or structure or, if any such improvement
does not so comply, such non-compliance does not materially and adversely affect
the value of the related Mortgaged Property, such value as determined by the
appraisal performed at origination or in connection with the sale of the related
Mortgage Loan by the Seller hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related Mortgaged
Property to be encumbered by any lien (other than a Permitted Encumbrance)
junior to or of equal priority with the lien of the related Mortgage without the
prior written consent of the holder thereof or the satisfaction of debt service
coverage or similar criteria specified therein. The Seller has no knowledge that
any of the Mortgaged Properties is encumbered by any lien junior to the lien of
the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits, or proceedings before any court, administrative
agency or arbitrator concerning any Mortgage Loan, Mortgagor or related
Mortgaged Property that might adversely affect title to the Mortgaged Property
or the validity or enforceability of the related Mortgage or that might
materially and adversely affect the value of the Mortgaged Property as security
for the Mortgage Loan or the use for which the premises were intended.
31) Servicing. The servicing and collection practices used by the Seller
or any prior holder or servicer of each Mortgage Loan have been in all material
respects legal, proper and prudent and have met customary industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable mortgage
loans, as of the date of origination of each Mortgage Loan or as of the date of
the sale of the related Mortgage Loan by the Seller hereunder, the related
Mortgagor was in possession of all material licenses, permits and franchises
required by applicable law for the ownership and operation of the related
Mortgaged Property as it was then operated.
33) Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all federal and
state laws applicable to the use and operation of the related Mortgaged
Property, and (b) if the operator of the Mortgaged Property participates in
Medicare or Medicaid programs, the facility is in compliance in all material
respects with the requirements for participation in such programs.
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is not
secured by a pledge of any collateral that has not been assigned to the
Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause, which
provides for the acceleration of the payment of the unpaid principal balance of
the Mortgage Loan if, without prior written consent of the holder of the
Mortgage, the property subject to the Mortgage or any material portion thereof,
or a controlling interest in the related Mortgagor, is transferred, sold, or
encumbered; provided, however, that certain Mortgage Loans provide a mechanism
for the assumption of the loan by a third party upon the Mortgagor's
satisfaction of certain conditions precedent, and upon payment of a transfer
fee, if any, or transfer of interests in the Mortgagor or constituent entities
of the Mortgagor to a third party or parties related to the Mortgagor upon the
Mortgagor's satisfaction of certain conditions precedent.
36) Single Purpose Entity. Each Mortgage Loan with a Cut-off Date
Principal Balance in excess of $5 million requires the Mortgagor to be for at
least as long as the Mortgage Loan is outstanding and, to the Seller's
knowledge, each such Mortgagor is, a Single Purpose Entity, the organizational
documents of the Mortgagor with respect to each Mortgage Loan with a Cut-off
Date Principal Balance in excess of $15 million provide that the Mortgagor is a
Single Purpose Entity and each Mortgage Loan with a Cut-off Date Principal
Balance of $20 million or more has a counsel's opinion regarding
non-consolidation of the Mortgagor in any insolvency proceeding involving any
other party. For this purpose, a "Single Purpose Entity" shall mean an entity,
other than an individual, whose organizational documents (or if the Mortgage
Loan has a Cut-off Date Principal Balance equal to $15 million or less, its
organizational documents or Mortgage Loan documents) provide substantially to
the effect that it was formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage Loans
and prohibit it from engaging in any business unrelated to such Mortgaged
Property or Properties, and whose organizational documents further provide, or
which entity represented in the related Mortgage Loan documents, substantially
to the effect that it does not have any assets other than those related to its
interest in and operation of such Mortgaged Property or Properties, or any
indebtedness other than as permitted by the related Mortgage(s) or the other
related Mortgage Loan documents, that it has its own books and records and
accounts separate and apart from any other person (other than a Mortgagor for a
Mortgage Loan that is cross-collateralized and cross-defaulted with the related
Mortgage Loan), and that it holds itself out as a legal entity, separate and
apart from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each Mortgage
Loan provide that such Mortgage Loan constitutes either (a) the recourse
obligations of at least one natural person or (b) the non-recourse obligations
of the related Mortgagor, provided that at least one natural person (and the
Mortgagor if the Mortgagor is not a natural person) is liable to the holder of
the Mortgage Loan for damages arising in the case of fraud or willful
misrepresentation by the Mortgagor, misappropriation of rents, insurance
proceeds, or condemnation awards and breaches of the environmental covenants in
the Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan Documents
provide that the related borrower is responsible for the payment of all
reasonable costs and expenses of the mortgagee incurred in connection with the
defeasance of such Mortgage Loan and the release of the related Mortgaged
Property, and the borrower is required to pay all reasonable costs and expenses
of the mortgagee associated with the approval of an assumption of such Mortgage
Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased until
the date that is more than two years after the Closing Date or provides that it
can be defeased with any property other than government securities (as defined
in Section 2(a)(16) of the Investment Company Act of 1940, as amended) or any
direct non-callable security issued or guaranteed as to principal or interest by
the United States.
40) Prepayment Premiums. As of the applicable date of origination of each
such Mortgage Loan, any prepayment premiums and yield maintenance charges
payable under the terms of the Mortgage Loans, in respect of voluntary
prepayments, constituted customary prepayment premiums and yield maintenance
charges for commercial mortgage loans.
41) Utilities. Each Mortgaged Property is served by public utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Mortgaged Property is currently being utilized.
42) Single Asset REMIC. With respect to each of the single asset REMICs,
there has been no amendment, waiver, impairment, alteration, or modification to
any provision of the related REMIC declaration or to any provisions of the
related Mortgage Loan documents since the startup day of the single asset REMIC.
With respect to each of the single asset REMICs, the single asset REMIC has been
administered, the related Mortgage Loan has been serviced, and each provision of
the related REMIC declaration has been complied with in a manner such that the
single asset REMIC has not failed to qualify as a REMIC for federal income tax
purposes at any time since the Startup Day.
43) Separate Tax Lots. Each related Mortgaged Property constitutes one or
more complete separate tax lots (or the related Mortgagor has covenanted to
obtain separate tax lots and a Person has indemnified the mortgagee for any loss
suffered in connection therewith or an escrow of funds in an amount sufficient
to pay taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
44) No Fraud. In the origination and servicing of the Mortgage Loan,
neither the Seller nor any prior holder of the Mortgage Loan participated in any
fraud or intentional material misrepresentation with respect to the Mortgage
Loan. To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including knowledge of a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, mortgagee's title policy and any letters of credit or Ground Leases,
if such document is not included in the Mortgage File, the Seller shall make
such representation or warranty without any such qualification. Wherever there
is a reference in a representation or warranty to receipt by, or possession of,
the Seller of any information or documents, or to any action taken by the Seller
or to any action which has not been taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, the Seller. For purposes of these representations and warranties,
when referring to the conduct of "reasonable prudent institutional commercial or
multifamily, as applicable mortgage lenders" (or similar such phrases and
terms), such conduct shall be measured by reference to the industry standards
generally in effect as of the date the related representation or warranty
relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit B shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
Schedule B-1
------------
(a) Mortgage Loans Permitting Property Substitutions.
See attached.
(b)(1) Mortgage Loans with no Engineering Report within 18 Months prior to the
Cut-off Date.
See attached.
(b)(2) Mortgage Loans with an Engineering Report within 18 Months prior to the
Cut-off Date.
Mortgage Loans not listed at (b)(1).
(c)(1) Mortgage Loans with no Environmental Assessment within 18 Months prior
to the Cut-off Date.
See attached.
(c)(2) Mortgage Loans with an Environmental Assessment within 18 Months prior
to the Cut-off Date.
Mortgage Loans not listed at (c)(1).
(d) Mortgage Loans with Secured Creditor Impaired Property Policy.
None.
(e) Mortgage Loans for which the related Mortgaged Property has been subjected
to partial releases of real property.
None.
(f) Cross-collateralized / crossed-out.
None.
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
SCHEDULE B - 1
SUBSTITUTION PERMITTED
CITIGROUP
Mortgage Loan Number Property Name
-------------------- -------------------------
4 Ala Moana Portfolio
4.01 Ala Moana Center
4.02 Ala Moana Building
4.03 Ala Moana Pacific Center
4.04 Ala Moana Plaza
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
SCHEDULE B - 1
ENGINEERING REPORT NOT PERFORMED WITHIN 18 MONTHS OF CUTOFF DATE
CITIGROUP
Mortgage Loan Number Property Name
-------------------- ---------------------------------
35 Xxxx'x Home Improvement Center *
*Engineering report not performed since the property type is land
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
SCHEDULE B - 1
ENVIRONMENTAL REPORT NOT PERFORMED WITHIN 18 MONTHS OF CUTOFF DATE
CITIGROUP
Mortgage Loan Number Property Name
--------------------- ------------------------------
35 Lowe's Home Improvement Center
Exhibit C
Exceptions to Representations for Citigroup Loans
Representation #2
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALA MOANA With respect to the loan listed to the left,
the loan is evidenced by multiple pari passu
notes and multiple subordinate companion
notes, which notes are all secured by the same
mortgage instrument encumbering the Ala Moana
Loan. Only one of the pari passu notes is
included in the 2007 COBALT -- C2
securitization transaction. The pari passu
notes are pro rata and are senior to the
multiple subordinate companion notes which
subordinated companion notes are pari passu
and pro rata with each other.
-----------------------------------------------------------------------------------------------
Representation #4
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALA MOANA WITH RESPECT TO THE LOAN LISTED TO THE LEFT,
THE LOAN IS EVIDENCED BY MULTIPLE PARI PASSU
NOTES AND MULTIPLE SUBORDINATE COMPANION
NOTES, WHICH NOTES ARE ALL SECURED BY THE SAME
MORTGAGE INSTRUMENT ENCUMBERING THE ALA MOANA
LOAN. ONLY ONE OF THE PARI PASSU NOTES IS
INCLUDED IN THE 2007 COBALT-C2 SECURITIZATION
TRANSACTION. THE PARI PASSU NOTES ARE PRO RATA
AND ARE SENIOR TO THE MULTIPLE SUBORDINATE
COMPANION NOTES WHICH SUBORDINATED COMPANION
NOTES ARE PARI PASSU AND PRO RATA WITH EACH
OTHER.
-----------------------------------------------------------------------------------------------
Representation #12
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
TEXAS OFFICE PORTFOLIO With respect to the loan listed to the left, a
Phase I consultant reported that former
leaking underground storage tanks ("LUSTs"),
all of which have been removed, impacted soil
and groundwater at the subject property. The
state has issued a status of "final
concurrence pending documentation of well
plugging." According to the consultant, upon
receipt of confirmation that the tanks have
been properly closed and all monitoring xxxxx
that were installed in connection with on-site
remedial and monitoring activities are
abandoned, the state will issue regulatory
closure to the LUSTs.
-----------------------------------------------------------------------------------------------
HILLCREST SHOPPING CENTER With respect to the loan listed to the left, a
Phase I consultant reported that the subject
property was impacted by dry cleaning fluid
released. The impacted soil has been sealed
below concrete flooring. Although soil
investigations have determined that
perchloroethylene ("PCE") contamination exists
in excess of state action levels, the
concentrations have reduced since 2000 due to
the operation of a soil-vapor extraction
("SVE") system. According to the consultant,
the SVE system and quarterly monitoring will
continue for one additional year. If
concentration levels remain the same or
lessen, the consultant will request a
state-issued case closure letter. However, if
PCE concentrations show a mixed trend,
continued use of the SVE system and additional
groundwater remediation methods, at an
estimated cost of $384,000, will be required.
An escrow for the estimated remedial costs has
been established.
-----------------------------------------------------------------------------------------------
Representation #14
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ROUTE 20 RETAIL CENTER -- With respect to the loans listed to the left,
LOWE'S the borrower was not required to obtain
terrorism insurance because the mortgaged
BLOCK 76 interest was land only .
-----------------------------------------------------------------------------------------------
Representation #16
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALL LOANS With respect to all the loans in the 2007
COBALT C2 securitization, Seller makes no
representation regarding the bankruptcy or
insolvency of any tenant at the Mortgaged
Property.
-----------------------------------------------------------------------------------------------
Representation #24
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALA MOANA WITH RESPECT TO THE LOAN LISTED TO THE LEFT,
THE RELATED LOAN DOCUMENTS PROVIDE FOR THE
RELEASE OF ANY ONE OR MORE PROPERTIES UPON A
SALE OF SUCH PROPERTY TO A BONA FIDE THIRD
PARTY PURCHASER, SUBJECT TO THE SATISFACTION
OF CERTAIN CONDITIONS, INCLUDING AMONG OTHERS,
THAT (I) NO EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING, (II) BORROWER DELIVERS TO
LENDER EVIDENCE WHICH WOULD BE SATISFACTORY TO
A PRUDENT LENDER ACTING REASONABLY THAT (A)
THE PARCEL TO BE RELEASED (THE "RELEASE
PARCEL") HAS BEEN LEGALLY SUBDIVIDED FROM THE
REMAINDER OF THE PROPERTY; (B) AFTER GIVING
EFFECT TO SUCH RELEASE, EACH OF THE RELEASE
PARCEL AND THE BALANCE OF THE PROPERTY
CONFORMS TO AND IS IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH APPLICABLE LEGAL
REQUIREMENTS AND CONSTITUTES A SEPARATE TAX
LOT AND (C) THE RELEASE PARCEL IS NOT
NECESSARY FOR THE PROPERTY TO COMPLY WITH ANY
ZONING, BUILDING, LAND USE OR PARKING OR OTHER
LEGAL REQUIREMENTS APPLICABLE TO THE PROPERTY
OR FOR THE THEN CURRENT USE OF THE PROPERTY;
(III) IN THE EVENT THAT THE RELEASE WOULD
REASONABLY BE EXPECTED TO MATERIALLY ADVERSELY
AFFECT LENDER'S RIGHTS UNDER THE TITLE
INSURANCE POLICY AS TO ANY PORTION OF THE
PROPERTY OTHER THAN AS TO THE RELEASE PARCEL,
BORROWER SHALL DELIVER TO LENDER AN
ENDORSEMENT TO THE TITLE INSURANCE POLICY
INSURING THE MORTGAGE (A) EXTENDING THE
EFFECTIVE DATE OF THE POLICY TO THE EFFECTIVE
DATE OF THE RELEASE; (B) CONFIRMING NO CHANGE
IN THE PRIORITY OF THE MORTGAGE ON THE BALANCE
OF THE PROPERTY (EXCLUSIVE OF THE RELEASE
PARCEL) OR IN THE AMOUNT OF THE INSURANCE OR
THE COVERAGE OF THE PROPERTY (EXCLUSIVE OF THE
RELEASE PARCEL) UNDER THE POLICY; AND (C)
INSURING THE RIGHTS AND BENEFITS UNDER ANY NEW
OR AMENDED RECIPROCAL EASEMENT AGREEMENT; (IV)
PRIOR TO THE DATE OF THE RELEASE, BORROWER
DELIVERS TO LENDER APPROVALS TO THE RELEASE
EXECUTED BY ANY ENTITIES OTHER THAN LENDER
HOLDING LIENS ENCUMBERING THE PROPERTY OR
HOLDING ANY OTHER INTEREST IN THE PROPERTY
THAT WOULD BE AFFECTED BY THE RELEASE, IF
REQUIRED; (V) BORROWER HAS COMPLIED WITH ANY
REQUIREMENTS APPLICABLE TO THE RELEASE IN THE
LEASES, RECIPROCAL EASEMENT AGREEMENTS,
OPERATING AGREEMENTS, PARKING AGREEMENTS OR
OTHER SIMILAR AGREEMENTS AFFECTING THE
PROPERTY AND THE RELEASE DOES NOT VIOLATE ANY
OF THE PROVISIONS OF SUCH DOCUMENTS IN ANY
RESPECT THAT WOULD RESULT IN A TERMINATION (OR
GIVE ANY OTHER PARTY THERETO THE RIGHT TO
TERMINATE), EXTINGUISHMENT OR OTHER LOSS OF
MATERIAL RIGHTS OF BORROWER OR IN A MATERIAL
INCREASE IN BORROWER'S OBLIGATIONS UNDER SUCH
DOCUMENTS AND, TO THE EXTENT NECESSARY TO
COMPLY WITH SUCH DOCUMENTS, THE TRANSFEREE OF
THE RELEASE PARCEL HAS ASSUMED BORROWER'S
OBLIGATIONS, IF ANY, RELATING TO THE RELEASE
PARCEL UNDER SUCH DOCUMENTS; (VI) BORROWER
DELIVERS TO LENDER ANY OTHER INFORMATION,
APPROVALS AND DOCUMENTS WHICH WOULD BE
REQUIRED BY A PRUDENT LENDER ACTING REASONABLY
RELATING TO THE RELEASE; (VIII) INGRESS TO AND
EGRESS FROM ALL PORTIONS OF THE PROPERTY
REMAINING AFTER THE RELEASE SHALL BE
SATISFACTORY TO THE LENDER; (IX) THE RELEASE
PARCEL SHALL BE VACANT, NON-INCOME PRODUCING
AND UNIMPROVED; AND (X) IN THE EVENT OF A
SECURITIZATION, THE RATING AGENCIES SHALL HAVE
CONFIRMED THAT THE RELEASE WILL NOT RESULT IN
A DOWNGRADE, WITHDRAWAL OR QUALIFICATION OF
THE THEN CURRENT RATING ASSIGNED TO ANY CLASS
OF SECURITIES BY THE RATING AGENCIES AND
BORROWER SHALL DELIVER AN OPINION OF COUNSEL
OPINING ON MATTERS RELATED TO REMIC ISSUES.
-----------------------------------------------------------------------------------------------
ONE & THREE LONG WHARF DRIVE WITH RESPECT TO THE LOAN LISTED TO THE LEFT,
THE LOAN DOCUMENTS PERMIT THE BORROWER TO
OBTAIN THE RELEASE A PORTION OF THE MORTGAGED
PROPERTY AFTER JANUARY 1, 2012 SUBJECT TO
CERTAIN CONDITIONS INCLUDING, AMONG OTHERS:
(I) PARTIALLY DEFEASING THE MORTGAGE LOAN IN
AN AMOUNT, IF ANY, SUCH THAT THE REMAINING
PROPERTY HAS AN 80% LOAN TO VALUE RATIO AND A
1.15 TO 1.0 DEBT SERVICE COVERAGE RATIO; AND
(II) BORROWER CAN NOT BE THE OWNER OF THE
RELEASE PARCEL. PURSUANT TO A GROUND LEASE,
UNDER WHICH THE BORROWER IS THE GROUND LESSOR,
THE GROUND LESSEE HAS AN OPTION TO PURCHASE
THE SAME PARCEL WHICH IS EXERCISABLE FROM AND
AFTER MAY 1, 2012 AT A PRICE OF NO LESS THAN
$1,500,000. THE PURCHASE OPTION IS NOT SUBJECT
TO OR SUBORDINATE TO THE MORTGAGE.
-----------------------------------------------------------------------------------------------
ALA MOANA With respect to the loan listed to the left,
the borrower may obtain a release of the lien
from one or more portions of Mortgaged
Property by substituting another property of
like use, value and condition in the same
shopping mall as the potion of the property to
be released, subject to satisfaction of the
following conditions, among others: (i) no
event of default shall exist at the time; (ii)
the parcel to be released shall be vacant,
non-income producing and unimproved; (iii) the
borrower shall acquire fee simple title to the
property to be substituted; (iv) the borrower
shall provided Lender with certain loan
documents, environmental reports, property
condition reports and physical condition
reports as set forth in the loan documents;
(v) the borrower shall provide an endorsement
to the existing title policy insuring the lien
over the substituted property; and (vi) the
released parcel and the substituted parcel
shall be separate tax lots.
-----------------------------------------------------------------------------------------------
ONE & THREE LONG WHARF DRIVE With respect to the loan listed to the left,
the borrower may obtain the release of the
lien from a specific portion of the mortgaged
property consisting of a parking lot subject
to the following conditions, among others: (i)
no event of default shall exist; (ii) borrower
shall deliver an amendment to a specific lease
evidencing that the parcel to be released is
no longer needed to satisfy the parking
requirements of such lease; (iii) lender shall
have received an endorsement to lender's title
insurance policy covering the property,
insuring Lender that the lien of this mortgage
is and remains a first lien against the
remainder of the property; and (iv) borrower
shall not own the released parcel.
-----------------------------------------------------------------------------------------------
PARK CENTRE VI With respect to the loan listed to the left,
the borrower may obtain the release of a
specific parcel of the mortgaged property
subject to the following conditions, among
others: (i) no event of default shall exist;
(ii) borrower shall have paid the lender
$550,000 which represents the value of the
release parcel; (iii) lender shall have
received an endorsement to lender's title
insurance policy covering the property,
insuring Lender that the lien of this mortgage
is and remains a first lien against the
remainder of the property; and (iv) borrower
shall have provided to lender proof that; (A)
the remaining property's loan-to-value ratio
is 62% or less, as reasonably determined by
lender; and (B) the debt service coverage
ratio before and immediately after the release
is 1.40 to 1.0.
-----------------------------------------------------------------------------------------------
HILLCREST SHOPPING CENTER With respect to the loan listed to the left,
the applicable tenant has a right of first
refusal with respect to the mortgaged
property. While such right of first refusal is
subordinated to the lien of the mortgage and
would not apply to a foreclosure acquisition
of the mortgaged property, such right of first
refusal would apply to subsequent sales of the
mortgaged property.
-----------------------------------------------------------------------------------------------
Representation #25
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALA MOANA With respect to the loan listed to the left,
sponsors of the borrower are permitted to
pledge indirect interests in the borrower in
connection with a line of credit or similar
corporate facility secured by all, or
substantially all, of such sponsor's assets.
-----------------------------------------------------------------------------------------------
Representation #30
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ONE SUMMER STREET WITH RESPECT TO THE LOAN LISTED TO THE LEFT,
THE FOLLOWING LITIGATION EXISTS: XXXXXXX ONE
SUMMER STREET, LLP ("XXXXXXX LLP") X. XXXX'X
EAST, INC. ("MACY'S"). WHEN THE BUILDING WAS
PURCHASED FROM FEDERATED DEPARTMENT STORES,
MACY'S WAS REQUIRED TO VACATE CERTAIN PREMISES
AND TURN THEM OVER TO XXXXXXX LLP PURSUANT TO
A TURN-OVER SCHEDULE. THAT SCHEDULE WAS LATER
AMENDED TO PROVIDE MACY'S ADDITIONAL TIME.
DESPITE THE ADDITIONAL TIME, THEY STILL TURNED
OVER MUCH OF THE SPACE LATE. XXXXXXX LLP DID
NOT TAKE ANY ACTION AGAINST MACY'S UNTIL A
DISPUTE WAS INITIATED BY WILTEL IN 2003 FOR
XXXXXXX LLP TURNING OVER SPACE TO WILTEL LATE.
XXXXXXX LLP SETTLED THE DISPUTE WITH WILTEL
AND INITIATED THE ACTION AGAINST MACY'S. THE
CLAIM AGAINST MACY'S INVOLVES LIQUIDATED
DAMAGES OF $450,000 PLUS ADDITIONAL
CONSEQUENTIAL DAMAGES AND ATTORNEY FEES
RESULTING FROM THE LATE TURN OVER. MACY'S
COUNTERCLAIMED FOR APPROXIMATELY $90,000 OF
UNREIMBURSED UTILITY PAYMENTS. THERE IS
CURRENTLY A SETTLEMENT IN PRINCIPLE WITH
MACY'S PENDING ENGINEERING WORK WHEREBY MACY'S
WILL PAY TO XXXXXXX LLP $250,000 AND GIVE
XXXXXXX LLP APPROVAL TO PUT IN AN ADDITIONAL
ELEVATOR ON WASHINGTON STREET TO GIVE BETTER
ACCESS TO THE VACANT 3RD FLOOR SPACE.
-----------------------------------------------------------------------------------------------
Representation #35
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALL LOANS THE RELATED MORTGAGE LOAN DOCUMENTS GENERALLY
PERMIT ONE OR MORE OF THE FOLLOWING TYPES OF
TRANSFERS: (A) TRANSFERS OF OWNERSHIP
INTERESTS IN THE RELATED BORROWER, TO A PERSON
OR PERSONS AFFILIATED WITH OR OTHERWISE
RELATED TO THE BORROWER; (B) TRANSFERS BY THE
BORROWER OF THE CORRESPONDING MORTGAGED
PROPERTY, OR TRANSFERS OF OWNERSHIP INTERESTS
IN THE RELATED BORROWER, TO SPECIFIED ENTITIES
OR TYPES OF ENTITIES; (C) ISSUANCE BY THE
BORROWER OF NEW PARTNERSHIP OR MEMBERSHIP
INTERESTS; (D) CHANGES IN OWNERSHIP BETWEEN
EXISTING SHAREHOLDERS, PARTNERS, MEMBERS OR TO
THEIR RESPECTIVE AFFILIATES, AS APPLICABLE, OF
THE RELATED BORROWER; (E) A TRANSFER OF
NON-CONTROLLING OWNERSHIP INTERESTS IN THE
RELATED BORROWER; (F) TRANSFERS OF INTERESTS
IN THE RELATED BORROWER FOR ESTATE PLANNING
PURPOSES OR OTHERWISE UPON THE DEATH OR
DISABILITY OF A PRINCIPAL; (G) TRANSFERS OF
UNDEVELOPED LAND OR CERTAIN PORTIONS OF THE
RELATED MORTGAGED PROPERTY NOT CONSIDERED
MATERIAL IN UNDERWRITING SUCH MORTGAGE LOAN;
(H) TRANSFERS AND PLEDGES OF DIRECT OR
INDIRECT EQUITY INTERESTS IN BORROWER TO
SPECIFIED ENTITIES OR TYPES OF ENTITIES; OR
(I) OTHER TRANSFERS SIMILAR IN NATURE TO THE
FOREGOING.
-----------------------------------------------------------------------------------------------
Representation #37
-----------------------------------------------------------------------------------------------
LOAN NUMBER LOAN NAME DESCRIPTION OF EXCEPTION
-----------------------------------------------------------------------------------------------
ALL LOANS MORTGAGE LOANS IN MANY OR ALL CASES PROVIDE
FOR RECOURSE LIABILITY TO THE BORROWER AND/OR
OTHER GUARANTORS OR INDEMNITORS OTHER THAN THE
BORROWER FOR MATTERS AND/OR UNDER
CIRCUMSTANCES WHICH ARE IN ADDITION TO THOSE
ITEMS SPECIFIED IN REPRESENTATION NUMBER 37.
-----------------------------------------------------------------------------------------------
