Exhibit 99.1
CWCapital Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of April
1, 2007 (the "Agreement"), between CWCapital Mortgage Securities I LLC
("CWCapital Securities I"), CWCapital Mortgage Securities III LLC ("CWCapital
Securities III") and CWCapital Mortgage Securities V LLC ("CWCapital Securities
V" and, together with CWCapital Securities I and CWCapital Securities III, their
successors and permitted assigns hereunder, collectively, the "Seller"),
CWCapital LLC, as an additional party with respect to the mortgage loans
identified on the schedule annexed hereto as Exhibit A ("CWCapital" and,
together with CWCapital Mortgage Securities I LLC, CWCaptal Mortgage Securities
III LLC and CWCapital Mortgage Securities V LLC, the "CWCapital Parties") 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,
as identified on the schedule annexed hereto as Exhibit A (the "Mortgage Loan
Schedule") and the two Loan REMIC Loans together with their related Loan REMIC
Interest and the Loan REMIC Residual Interest (collectively, the "Mortgage
Loans").
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., 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 Securities"), Citigroup Global Markets Inc. ("CGMI") and
Deutsche Bank Securities Inc. ("DBS" and, together with Wachovia Securities and
CGMI, 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 Securities and CGMI
(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 April 2,
2007.
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 $901,333,359.66 (the
"CWCapital 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 100.662094% of the
CWCapital Mortgage Loan Balance, plus (ii) $1,632,314.71, which amount
represents the amount of interest accrued on the CWCapital 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, or cause to be delivered 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 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. 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 for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage 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 Serviced
Loans, (ii) are reasonably necessary for the ongoing administration and/or
servicing of the 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 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) each of the CWCapital Parties hereby represents and warrants to
and covenants with the Purchaser, as of the date hereof, that:
(i) CWCapital LLC, CWCapital Mortgage Securities I LLC, CWCapital
Mortgage Securities III LLC and CWCapital Mortgage Securities V LLC are
each a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Massachusetts, are duly
qualified as foreign organizations 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 their ability to perform their obligations
hereunder, and possess all requisite authority and power to carry on their
business as currently conducted by it and to execute, deliver and comply
with their obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by each of the CWCapital Parties and, assuming due
authorization, execution and delivery hereof by the Purchaser, constitutes
a legal, valid and binding obligation of each of the CWCapital Parties,
enforceable against each of the CWCapital Parties 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 each of the
CWCapital Parties' and the CWCapital Parties' performance and compliance
with the terms of this Agreement will not (A) violate each of the
CWCapital Parties' organizational documents, (B) violate any law or
regulation or any administrative decree or order to which the CWCapital
Parties are 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 CWCapital Parties are a party or by which the
CWCapital Parties are bound.
(iv) Each of the CWCapital Parties are not in default with respect
to any order or decree of any court or any order, regulation or demand of
any federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the CWCapital Parties'
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the CWCapital Parties or
their properties or have consequences that would, in each of the CWCapital
Parties' reasonable and good faith judgment, materially and adversely
affect its performance hereunder.
(v) Each of the CWCapital Parties' are 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 CWCapital Parties' reasonable
and good faith judgment, materially and adversely affect the ability of
each of the CWCapital Parties 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 CWCapital Parties or the
performance by the CWCapital Parties of their obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage 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
each of the CWCapital Parties of or compliance by the CWCapital Parties'
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 CWCapital
Parties' knowledge, threatened against any of the CWCapital Parties that
would, in the CWCapital Parties' good faith and reasonable judgment,
prohibit its entering into this Agreement or materially and adversely
affect the performance by the CWCapital Parties of their 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 CWCapital Parties hereby make, 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 CWCapital Parties 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 CWCapital Parties, 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 any of the CWCapital Parties 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 the related Mortgaged Property, or in the case of any
Mortgaged Property related to a Loan Group, to the extent of 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 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 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) 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 such Mortgage Loan constitute the sole remedies
available to the Purchaser with respect to any Breach or Document Defect,
provided that for purposes of the remedies set forth in this Section 5, the sole
recourse with respect Mortgage Loans shall be against CWCapital.
(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 fees, 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 (or
with respect to any Serviced Companion Loan that is deposited into another
securitization, the depositor of such securitization) and the Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next 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 CWCapital
Parties 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, 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 CWCapital Parties 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 CWCapital
Parties;
(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 CWCapital, executed by a duly authorized
officer of CWCapital and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that
CWCapital 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 CWCapital, 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 CWCapital, 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 CWCapital, true and correct copies
of (i) the resolutions of the board of directors authorizing CWCapital's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of CWCapital, and
(iii) certificates of good standing of CWCapital Mortgage Securities I,
CWCapital Mortgage Securities III LLC and CWCapital Mortgage Securities V issued
by the Secretary of State of the State of Delaware as of a recent date;
(g) A favorable opinion of counsel to CWCapital, 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 CWCapital, 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;
(i) A letter of counsel of CWCapital, 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 CWCapital 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
CWCapital or the Mortgage Loans, in the light of the circumstances under which
they were made, not misleading; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
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 beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
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 CWCapital Parties 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 CWCapital Parties under this Agreement shall not be assigned by the
CWCapital Parties without the prior written consent of the Purchaser, except
that any person into which one of the CWCapital Parties may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which one of the CWCapital Parties is a party, or any person
succeeding to all or substantially all of the business of the CWCapital Parties,
shall be the successor one of the CWCapital Parties 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
CWCapital Parties, 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 CWCapital Parties' 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
CWCapital Parties have 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.
ADDITIONAL PARTY
CWCAPITAL LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
SELLER
CWCAPITAL MORTGAGE SECURITIES I LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
CWCAPITAL MORTGAGE SECURITIES III LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
CWCAPITAL MORTGAGE SECURITIES V LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
PURCHASER
CWCAPITAL COMMERCIAL FUNDING CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: /s/ Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
SCHEDULE A
Notices
Additional Party:
----------------
Address for Notices:
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx
Seller:
------
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx
Purchaser:
---------
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
EXHIBIT A
Mortgage Loan Schedule
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C2
EXHIBIT A
CWCAPITAL
Mortgage
Loan Number Property Name Address City
----------- ---------------------------------------------- --------------------------------------- -------------------
2 00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxx Xxxx
0 The Woodies Building 0000 X Xxxxxx, XX and 0000 X Xxxxxx, XX Washington
9 1515 Flagler Waterview 0000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxx Xxxxx
15 Preferred Freezer - Xxxxxx, CA 4900 Bandini Boulevard Xxxxxx
16 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx
20 000 Xxxxx Xxxxx Xxxxxx Apartments 000 Xxxxx Xxxxx Xxxxxx Champaign
23 Xxxxxxxx Enterprises Property 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxxx
25 Hampton Roads Research Quads I & III Portfolio Various Hampton
25.01 Hampton Roads Research Quad III 000 Xxxxxxxxxxx Xxx Xxxxxxx
25.02 Hampton Roads Research Quad I 000 Xxxxxxxxxxx Xxx Xxxxxxx
26 SpringHill Suites - X'Xxxx 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx
36 Doubletree Inn at the Colonnade 0 Xxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx
39 Riverwind at Xxxxxxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxxx Xxx Oviedo
45 00 Xxxxxxxxxx Xxxxxx 00-00 Xxxxxxxxxx Xxxxxx Xxxxxx
47 Chatham Pines Apartments 0000 Xxxxxxx Xxxxx Xxxxxx Winter Springs
50 Holiday Inn - Portsmouth, NH 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
56 Shadow Pines Apartments 0000 Xxxxx Xxxx Xxxxxxx
58 Shoe Pavilion 0000 Xxxxxxxxx Xxxxxxxxx Xxx Xxxxxxx
60 Your Extra Attic 6 Portfolio Various Various
60.01 Your Extra Attic - Pleasantdale, GA 0000 Xxxxxxxxxxxx Xxxx Xxxxxxx
60.02 Your Extra Attic - Stockbridge, GA 0000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxxxxx
60.03 Your Extra Attic - Duluth, GA 3280 Peachtree Industrial Boulevard Duluth
60.04 Your Extra Attic - Xxxxxxx Chapel, GA 4268 Xxxxxxx Chapel Road Doraville
60.05 Your Extra Attic - Guntersville, AL 22294 US Highway 431 Guntersville
60.06 Your Extra Attic - Norcross, GA 3120 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx
00 Xxx Xxxx Xxxxxx 0000 Xxxxxxx 00 Xxxx Xxxxxxx
64 Heritage Xxxx Retail Center 7901-7967 Heritage Xxxxxxx Xxxxx &
Xxxxxxxxx Xxxxxxxxx Xxxxxxxxxxx
00 000 Xxxxxxx Xxxxxx Xxxxx 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx
00 Xxx Xxxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxxxxx Xxxxxxxxx
72 3505-3521 East Xxxxxxx Retail Center 0000-0000 Xxxx Xxxxxxx Xxxxxx Orange
00 Xxxxxxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxx Xxxxxxxx Avenue Visalia
78 Best Buy - Wilmington, DE 0000 Xxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxx Xxxx Xxxxxxx 3869-3873 Xxxx Xxxx Xxxxxx Xx. Xxxxxxx
00 Xxxxxxx Xxxxxx Distribution Center 0000 0xx Xxxxxx Nitro
85 Hampton Inn & Suites - Xxxxxx, NY 3708 Xxxxxx Xxxxxxx Xxxx Xxxxxx
00 Holiday Inn Express - Livermore, CA 3000 Constitution Drive Livermore
88 Gladstone Building 000 Xxxxx Xxxxxx Xxxxxxxxxx
00 Xxxxxxx Xxxxxxx - Xxxxxxxx, XX 000 Xxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx
93 Holiday Inn Hotel & Suites - Tarpon Springs, FL 38724 U.S. Highway 00 Xxxxx Xxxxxx Xxxxxxx
00 000-000 Xxxx Xxxxxxxx 000-000 Xxxx Xxxxxxxx Xxxxxx Xxxxxx
00 Xxxxxx Xxxxx 0000-0000 Xxxxxxx Xxxx Xxxxxx
105 Pathmark Store 000 Xxxxx Xxxxxx Xxxxxx Linden
000 Xxx Xxxx Xxxxxxxxxx 000 Xxx Xxxxx Xxxxxx
110 Harbour Village Shopping Center 00000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
000 Xxxxxxxxx - Xxxxxxxx 000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx
112 Highland Orchard Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxx
114 Xxxxxx Shopping Center 23300-23380 Eureka Road Xxxxxx
121 Microtel Inn & Suites Buckhead 0000 Xxxxxxxxx Xxxxxxxxx Xxxxxxx
124 Artisan Shops 000 Xxxx Xxxxx Xx Xxxx Xxxxxx Decatur
126 Space Cadets Self Storage 0000 Xxxxxx Xxxxxx Chesapeake
127 America's Best Inn - Portsmouth, NH 000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
128 000 Xxxxxxxx Xxxxxx Xxxxxxxx 000 Xxxxxxxx Xxxxxxxxx Xxxxx Xxxxxx
130 Hawaiian Apartments 0000 Xxxxxx Xxxx Xxxxxxx
133 Eastpointe Professional Centre 0000 Xxxxx Xxxxxx Ft. Xxxxx
134 Pot Spring Professional Center 1810-1818 Pot Spring Road Lutherville
135 Sunbury Square Apartments 0000 Xxxxxxx Xxxxxx Xxxxxxxx
000 Xxxxxxx 00 Xxxxxx 0000 Xxx Xxxxxxx (XX 72/SR2) Athens
000 Xxxxxxxxx Xxxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxx
000 XXX - Xxxxxx, XX 0000 XX Xxxxxxx Xxxxxxx Xxxxxx
141 Willow Xxxx 2001-2029 Xxxxxxx Street Amarillo
142 Albertson's Pad at Xxxxxxxxxx Xxxx Xxxxxx 0 Xxxx Xxxx @ University Parkway Pensacola
146 Tractor Supply 0000 Xxxxxxxx Xxxxx Xxxxx Xxxxx Heights
148 Inver Grove Marketplace 0000 Xxxxxx Xxxxxx Xxxxx Grove Heights
000 Xxxxxxxxxxx Xxxxxx Shopping Center 00000 Xxxx Xxxxxx Xxxxxxxxxxx
153 Burnsville Marketplace 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx
Cut-Off Remaining Amort
Date Remaining Term Term (Mos.) for
Mortgage Zip Loan Monthly P&I to Maturity or Maturity Date Balloon
Loan Number State Code Balance ($) Payments ($) Mortgage Rate ARD (Mos.) or ARD Mortgage Loan
----------- ------- ------- ----------- ------------ ------------- ----------------- ------------- ----------------
2 XX 00000 243,500,000 IO 5.53100% 120 04/01/17
3 DC 20004 172,100,000 1,026,321 5.86500% 119 03/07/17 000
0 XX 00000 37,500,000 216,487 5.65100% 118 02/01/17 360
15 CA 90201 32,885,000 204,364 6.33800% 119 03/01/17 360
16 IL 60604 30,000,000 172,621 5.62100% 116 12/01/16 360
20 IL 61820 25,000,000 IO 5.64000% 117 01/01/17
23 MD 21227 23,000,000 134,807 5.79000% 117 01/01/17 360
25 VA 23666 22,350,000 IO 5.53650% 120 04/01/17
25.01 XX 00000
25.02 VA 23666
26 IL 60631 21,000,000 124,075 5.86400% 60 04/01/12 360
36 MD 21218 17,250,000 102,460 5.91300% 119 03/01/17 000
00 XX 00000 15,500,000 90,031 5.70700% 117 01/01/17 360
45 MA 02210 13,800,000 80,043 5.69400% 117 01/01/17 360
47 FL 32708 13,500,000 IO 5.64600% 57 01/01/12
50 NH 03801 13,188,567 77,712 5.83100% 119 03/01/17 359
56 GA 30350 10,985,000 IO 5.90000% 57 01/01/12
58 XX 00000 10,900,000 IO 6.21600% 57 01/01/12
60 Various Various 10,300,000 59,260 5.62000% 120 04/01/17 360
60.01 GA 30340
60.02 GA 30281
60.03 GA 30096
60.04 GA 30360
60.05 AL 35976
60.06 GA 00000
00 XX 00000 10,000,000 56,672 5.48300% 117 01/01/17 360
64 VA 20155 9,400,000 53,798 5.57200% 116 12/01/16 360
65 CA 92660 9,200,000 65,816 5.98200% 120 04/01/17 240
66 MD 20852 9,100,000 52,701 5.68000% 120 04/01/17 360
72 CA 92869 7,974,669 46,523 5.71800% 117 01/01/17 357
75 CA 93277 7,500,000 IO 5.64600% 120 04/01/17
78 DE 19808 7,376,150 42,594 5.62400% 117 01/01/17 000
00 XX 00000 6,900,000 40,869 5.88700% 118 02/01/17 360
81 WV 25143 6,750,000 39,288 5.72600% 120 04/01/17 360
85 NY 13850 6,591,786 43,042 6.12800% 119 03/01/17 299
87 CA 94551 6,335,000 36,712 5.68600% 119 03/01/17 000
00 XX 00000 6,300,000 37,731 5.99000% 119 03/01/17 360
90 CA 93551 6,000,000 34,105 5.51000% 117 01/01/17 000
00 XX 00000 5,695,063 33,558 5.83100% 119 03/01/17 359
95 IL 61801 5,500,000 30,898 5.40400% 118 02/01/17 360
98 CA 93221 5,415,379 32,120 5.89200% 119 03/01/17 359
105 NJ 07036 4,745,304 26,383 5.30200% 119 03/01/17 359
106 WV 25064 4,720,000 28,548 6.08200% 120 04/01/17 000
000 XX 00000 4,165,000 24,904 5.97500% 118 02/01/17 360
111 SC 29910 4,121,600 23,739 5.63000% 120 04/01/17 360
112 GA 30012 4,106,000 IO 6.23700% 58 02/01/12
000 XX 00000 4,000,000 23,057 5.63700% 119 03/01/17 000
000 XX 00000 3,600,000 21,041 5.76400% 120 04/01/17 000
000 XX 00000 3,400,000 20,158 5.89600% 119 03/01/17 360
126 VA 23321 3,250,000 18,838 5.68800% 116 12/01/16 360
127 NH 03801 3,150,000 18,505 5.81100% 120 04/01/17 000
000 XX 00000 3,100,000 18,028 5.71800% 120 04/01/17 000
000 XX 00000 2,960,000 17,434 5.83500% 120 04/01/17 000
000 XX 00000 2,900,000 16,777 5.67000% 117 01/01/17 360
134 MD 21093 2,800,000 IO 5.71300% 000 00/00/00
000 XX 00000 2,616,893 15,486 5.85000% 117 01/01/17 357
136 AL 35611 2,600,000 15,180 5.75400% 117 01/01/17 360
138 MA 01851 2,500,000 14,933 5.96500% 119 03/01/17 000
000 XX 00000 2,450,000 14,375 5.80000% 116 12/01/16 000
000 XX 00000 2,350,000 13,886 5.86500% 117 01/01/17 360
142 FL 32514 2,349,735 20,671 8.25000% 222 10/15/25 222
146 MN 55076 1,891,025 11,598 6.19300% 118 02/01/17 358
148 MN 55076 1,776,023 10,451 5.80600% 118 02/01/17 000
000 XX 00000 1,495,166 8,634 5.62400% 117 01/01/17 357
153 MN 55337 1,490,000 8,698 5.75300% 120 04/01/17 360
Interest Loan
Mortgage Accrual Administrative Master Servicing
Loan Number Method Cost Rate Fee Rate Ground Lease Mortgage Loan Seller Originator
----------- ---------- --------------- ---------------- ------------ -------------------- -----------------------
2 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
3 Actual/360 0.030910% 0.03000% Y CWCapital Gramercy Capital
9 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
15 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
16 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
20 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
23 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
25 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
25.01 N
25.02 N
26 Actual/360 0.030910% 0.03000% Y CWCapital CWCapital
36 Actual/360 0.080910% 0.08000% N CWCapital CWCapital
39 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
45 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
47 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
50 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
56 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
58 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
60 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
60.01 N
60.02 N
60.03 N
60.04 N
60.05 N
60.06 N
62 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
64 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
65 Actual/360 0.030910% 0.03000% Y CWCapital CWCapital
66 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
72 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
75 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
78 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
80 Actual/360 0.050910% 0.05000% N CWCapital CWCapital
81 Actual/360 0.130910% 0.13000% N CWCapital CWCapital
85 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
87 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
88 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
90 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
93 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
95 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
98 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
105 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
106 Actual/360 0.130910% 0.13000% N CWCapital CWCapital
110 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
111 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
112 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
114 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
121 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
124 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
126 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
127 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
128 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
130 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
133 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
134 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
135 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
136 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
138 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
139 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
141 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
142 30/360 0.030910% 0.03000% N CWCapital Royal Indemnity Company
146 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
148 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
152 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
153 Actual/360 0.030910% 0.03000% N CWCapital CWCapital
Collateralized
and Cross If ARD loan,
Mortgage Defaulted Loan Letter of Credit Anticipated Additional Serviced Loan
Loan Number Defeasance Loan Flag In-Place ARD Loan Repayment Date Interest Rate Combination?
----------- --------------- --------------- ---------------- -------- -------------- -------------- --------------
2 Y N Y N N
3 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
9 Y N Y Y 02/01/17 plus 3% N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
15 Y N N Y 03/01/17 plus 3% N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
16 Y N N Y 12/01/16 plus 3% N
20 Y N N N N
Greater of
initial
interest rate
plus 1.5% or
the Treasury
23 Y N N Y 01/01/17 Rate plus 1.5% N
25 N N N N N
25.01
25.02
26 Y N N N N
36 Y N Y N N
39 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
45 Y N N Y 01/01/17 plus 3% N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
47 N N N Y 01/01/12 plus 3% N
50 Y N N N N
56 N N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
58 N N N Y 01/01/12 plus 3% N
60 N N N N N
60.01
60.02
60.03
60.04
60.05
60.06
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
62 Y N Y Y 01/01/17 plus 3% N
64 Y N N N N
65 Y N Y N N
66 Y N N N N
72 Y N N N N
75 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Extended Term
Treasury Rate
78 Y N N Y 01/01/17 plus 3% N
80 Y N Y N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
81 Y N N Y 04/01/17 plus 3% N
85 Y N N N N
87 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
88 N N N Y 03/01/17 plus 3% N
90 N N Y N N
93 Y N N N N
95 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
98 N N N Y 03/01/17 plus 3% N
105 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
106 Y N N Y 04/01/17 plus 3% N
110 N N N N N
111 Y N N N N
112 N N N N N
114 N N N N N
121 N N N N N
124 N N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
126 Y N N Y 12/01/16 plus 3% N
127 N N N N N
128 Y N N N N
130 Y N N N N
133 Y N N N N
134 Y N N N N
135 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Extended Term
Treasury Rate
136 Y N N Y 01/01/17 plus 3% N
138 Y N N N N
Greater of
initial
interest rate
plus 3% or the
Treasury Rate
139 Y N N Y 12/01/16 plus 3% N
141 N N N N N
142 N N N N N
Greater of
initial
interest rate
plus 3% or the
Extended Term
Treasury Rate
146 Y N N Y 02/01/17 plus 3% N
148 Y N N N N
152 Y N N N N
153 Y N 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.
None.
(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.
None.
(c)(2) Mortgage Loans with an Environmental Assessment within 18 Months prior
to the Cut-off Date.
All Mortgage Loans.
(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
ENGINEERING REPORT NOT PERFORMED WITHIN 18 MONTHS OF CUTOFF DATE
CWCAPITAL
Mortgage Loan Number Property Name
------------------------- --------------------------------------------
142 Albertson's Pad at University Town Center *
*Engineering report not performed since the property type is land
EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit B to the
Mortgage Loan Purchase Agreement for CWCapital.
The Mortgage Loan known as Pot Spring Center has an Indemnity Deed of Trust
structure. The related Mortgagor under such Mortgage Loan executed and delivered
the related note to the lender and is obligated to make payments thereunder. The
related property owner for such Mortgage Loan executed an Indemnity Deed of
Trust and Security Agreement in favor of the lender, guaranteeing all amounts
payable by the Mortgagor under the related note. With respect to certain of the
representations and warranties, with respect to this Mortgage Loan, statements
regarding the Mortgagor relate to the property owner of the related Mortgaged
Property.
Annex A
ID# Mortgage Loan Exception
Exceptions to Representation 14: Insurance
Various The Mortgage Loan documents
generally require property
insurance against loss customarily
included under an "all risk"
property insurance policy but
certain "all risk" policies do not
specifically cover lightning,
windstorm, hail, explosion, riot,
riot attending a strike, civil
commotion, aircraft, vehicles and
smoke and/or may specifically
exclude windstorm or other such
coverage.
Certain of the Mortgage Loan
documents may limit terrorism
insurance coverage to the
extent such coverage is
commercially available for
similarly situated properties
and/or on commercially
reasonable terms. Certain of
the Mortgage Loan documents
provide limits on the
insurance premium amount the
related Mortgagor is required
to spend for terrorism
insurance. Certain of the loan
documents do not specifically
require terrorism insurance to
be maintained.
000 Xxxxx Xxxxx Xxxxxx Apartments Seller has waived the requirement
for flood insurance. However,
Mortgagor and the non-recourse
carve-out guarantor has
indemnification against any
damages incurred by Seller as a
result of damage to the Mortgaged
Property caused by flood and any
other hazards typically covered by
flood insurance.
Eastpointe Professional Center The Mortgagor has obtained
$1,000,000 of excess coverage
with respect to windstorm
insurance.
Willow Xxxx Shopping Center In lieu of obtaining flood
insurance or providing a revised
plat of survey acceptable to
Mortgagee which indicates all
improvements are located in an
area designated by the Federal
Emergency Management Agency as
having special flood hazards,
Mortgagor and the related
non-recourse carve-out guarantor
indemnified Seller against any
damages incurred by Seller as a
result of damage to the Mortgaged
Property caused by flood and any
other hazards typically covered by
flood insurance.
Exceptions to Representation 16: Mortgagor Bankruptcy
All Mortgage Loans The Seller makes no
representation regarding the
bankruptcy or insolvency of any
tenant at the Mortgaged Property.
Exceptions to Representation 17: Leasehold Estate
The Woodies Building (i): Under the terms of the
Ground Lease, the interest of the
Mortgagor in the Ground Lease may
only be encumbered upon
substantial improvement of the
leased premises by a construction
lender which is providing the
funds for the construction of the
leased premises. The estoppel
certificate received from the
Ground Lessor acknowledges that
Lender will be afforded the
rights of a "Lender" under the
Ground Lease.
(iv): Material amendments to the
Ground Lease entered into without
the consent of the Mortgagee may
be binding on the Mortgagee.
(v): Notice of termination may
be effective against the
Mortgagee even if a copy has
not been delivered to
Mortgagee (although the Ground
Lessor does have an obligation
to deliver notices of default
to Mortgagee).
(v): The Ground Lease does not
provide for a new lease for the
mortgagee upon termination of the
Ground Lease.
(vi): The Mortgagee is
provided the same period of
time as Ground Lessee to cure
defaults under the Ground
Lease.
(viii): Ground Lessee is
required to restore the leased
premises regardless of the
amount of insurance proceeds.
To the extent the premises
have been restored and there
are excess insurance proceeds,
the Ground Lessee is entitled
to the excess. The Mortgagee
does not control the
disbursement of the insurance
proceeds.
(x): The Ground Lease does not
require a new lease in the
case of a bankruptcy of the
Ground Lessee.
000 Xxxxxxx Xxxxxx Xxxxx (vii): The Ground Lease has an
original term which extends ten
years beyond the Stated Maturity
Date of the Mortgage Loan (expires
on 4/30/2028).
Spring Hill Suites - X'Xxxx A portion of the parking lot of
the Mortgaged Property is subject
to a Ground Lease expiring on
March 31, 2012. Since the Ground
Lease is not needed for use or
operation of the Mortgaged
Property, no value was assigned
for underwriting purposes to that
portion of the Mortgaged Property
and the Mortgagee did not obtain
the typical lender protections.
Exceptions to Representation 24: Releases of Mortgaged Property
Hampton Road Quad I & II The Mortgage Loan documents allow
for release of a portion of the
Mortgaged Property in
consideration of payment of less
than 125% of the allocated loan
amount (110%).
Your Extra Attic Portfolio The Mortgage Loan documents allow
for release of a portion of the
Mortgaged Property in
consideration of payment of less
than 125% of the allocated loan
amount (115%).
Exceptions to Representation 28: Local Law Compliance
Xxxxxx Shopping Center The Mortgaged Property was
constructed in 2006, and
temporary certificates of
occupancy are in place for all
tenants except for one tenant
that is not yet in occupancy and
whose space is being built-out.
However, the Mortgage Loan is
recourse to the non-recourse
carve-out guarantor in the event
that the Mortgagor fails to
obtain permanent certificates of
occupancy within 180 days of
origination (or earlier, if
required by law) or fails to
maintain a temporary or permanent
certificate of occupancy for each
tenant.
Holiday Inn Express Livermore The use of the Mortgaged Property
as a hotel is not one of the
approved uses listed in the
declaration agreement recorded in
January 1989 (the "Declaration").
The title company provided an
endorsement specifically insuring
Seller against any losses,
damages, costs and expenses
incurred due to any claim or
judgment of a breach (or alleged
breach) of the Declaration.
Further, the Mortgagor and the
related non-recourse carve-out
guarantor have indemnified Seller
against any loss suffered by
Seller due to a breach or any
allegation of a breach) of the
Declaration, to the extent such
loss is not covered by the title
company.
Exceptions to Representation 35: Due on Sale
Xxxxxxxx Enterprises Property The primary owner of the
Mortgagor, which is also the
non-recourse carve-out guarantor
(One Liberty Properties, Inc.),
is a publicly traded company, and
transfers of stock or issuances
of new stock in such company are
permitted, so long as the shares
of such stock are traded on any
publicly recognized exchange.
Subject to the satisfaction of
certain conditions set forth
in the Mortgage Loan
documents, including the
satisfaction of LTV and DSCR
tests, the equity holder of
the Mortgagor is permitted to
incur mezzanine debt.
Riverwind at Alafaya Apartments An equity holder of the Mortgagor
has incurred mezzanine debt in the
original principal amount of
$1,000,000 secured by its equity
interest in the Mortgagor. An
intercreditor agreement has been
entered into between the Seller
and the mezzanine lender.
Shadow Pines Apartments An equity holder of the Mortgagor
has incurred mezzanine debt in the
original principal amount of
$3,360,000 secured by its equity
interest in the Mortgagor.
Mortgagor is permitted to incur an
additional $3,955,000 as part of
this mezzanine financing. An
intercreditor agreement has been
entered into between the Seller
and the mezzanine lender.
Highland Orchard Apartments An equity holder of the
Mortgagor has incurred
mezzanine debt in the original
principal amount of $2,594,000
secured by its equity interest
in the Mortgagor. An
intercreditor agreement has
been entered into between the
Seller and the mezzanine
lender.
The Woodies Building Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
00 Xxxxx Xxxxxx Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Holiday Inn - Portsmouth Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
3501 East Xxxxxxx Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Gladstone Building Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Holiday Inn & Suites - Subject to the satisfaction of
Tarpon Springs certain conditions set forth
in the Mortgage Loan
documents, including the
satisfaction of LTV and DSCR
tests, the equity holder of
the Mortgagor is permitted to
incur mezzanine debt.
201 Wilshire Office Building Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Microtel Inn & Suites Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Artisan Shops Subject to the satisfaction of
certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
America's Best Inn - Subject to the satisfaction of
Portsmouth certain conditions set forth in
the Mortgage Loan documents,
including the satisfaction of LTV
and DSCR tests, the equity holder
of the Mortgagor is permitted to
incur mezzanine debt.
Exceptions to Representation 36: Single Purpose Entity
Various Certain special purpose entity
borrowers may be recycled
entities who in the past were
not in compliance with all of
the special purpose entity
requirements.
Preferred Freezer Xxxxxx No non-consolidation opinion was
delivered at origination.
Xxxxxxxx Enterprises Property No non-consolidation opinion was
delivered at origination.
Spring Hill Suites - X'Xxxx No non-consolidation opinion was
delivered at origination.
Exceptions to Representation 37: Non-Recourse Exceptions
Xxxxxxxx Enterprises Property The non-recourse carve-out
guarantor is One Liberty
Properties, Inc., a Maryland
corporation, and not a natural
person.
Xxxxxx Shopping Center The non-recourse carve-out
guarantor is ANK Enterprises,
Inc., a Michigan corporation, and
not a natural person.
Hampton Road Quad I & II The non-recourse carve-out
guarantor is Federal Acquisition
Partners, LLC, a limited liability
company, and not a natural person.
Spring Hill Suites - X'Xxxx The non-recourse carve-out
guarnator is Xxxxxxxx Guaranty
Company, LLC, a limited liability
company, and not a natural person.
