EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of April 11, 2008, between XXXXXXX XXXXX MORTGAGE COMPANY, as seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
"Annex A". The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement"), to be dated as of
April 1, 2008, among CCMSI, as depositor, Midland Loan Services, Inc. and
Capmark Finance Inc., as master servicers (each, a "Master Servicer" and,
together, the "Master Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer"), and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee").
Capitalized terms used herein (including the schedules attached hereto) but not
defined herein (or in such schedules) have the respective meanings set forth in
the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
Xxxxxxx, Xxxxx & Co. ("Goldman"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated (collectively, the
"Underwriters"), pursuant to an underwriting agreement dated as of the date
hereof (the "Underwriting Agreement"), between CCMSI and the Underwriters. The
Publicly Offered Certificates are more particularly described in a prospectus
supplement dated April 11, 2008 (the "Prospectus Supplement") and the
accompanying base prospectus dated April 4, 2008 (the "Base Prospectus" and,
together with the Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and Goldman,
pursuant to a certificate purchase agreement dated as of the date hereof (the
"Certificate Purchase Agreement"), between CCMSI, CGMI and Goldman (CGMI and
Goldman, in such capacity, together, the "Placement Agents"; the Underwriters
and the Placement Agents, collectively, the "Dealers"). The Privately Offered
Certificates are more particularly described in an offering memorandum dated
April 11, 2008 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Xxxxx'x Investors Service, Inc. and/or Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc. (together, the "Rating Agencies").
In connection with its sale of the Mortgage Loans, the Seller
shall enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Initial Aggregate Mortgage Loan Balance") of $772,990,681 (subject to a
variance of plus or minus 5.0%), after giving effect to any payments due on or
before such date, whether or not such payments are received. The Initial
Aggregate Mortgage Loan Balance, together with the aggregate principal balance
of the Other Mortgage Loans as of the Cut-off Date (after giving effect to any
payments due on or before such date whether or not such payments are received),
is expected to equal an aggregate principal balance (the "Initial Pool Balance")
of $1,849,908,472 (subject to a variance of plus or minus 5.0%). The purchase
and sale of the Mortgage Loans shall take place on April 25, 2008 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of a cash amount, payable in immediately available
funds, as reflected on the settlement statement agreed to by the Seller and the
Purchaser, which amount shall include interest accrued on the Mortgage Loans for
the period from and including the Cut-off Date up to but not including the
Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller or its designee of the Aggregate Purchase Price and satisfaction or
waiver of the other conditions to closing that are for the benefit of the
Seller, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (except as set forth in this
Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing-released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance and any escrow, reserve or comparable accounts related to the
Mortgage Loans, subject, in the case of any Mortgage Loan that is part of a Loan
Combination, to the rights of the holder(s) of any other mortgage loan(s) in the
related Loan Combination in such proceeds and reserve or comparable accounts,
and further subject to the understanding that the Seller will sell certain
servicing rights to the applicable Master Servicer pursuant to a servicing
rights purchase agreement between such Master Servicer and the Seller, and may
require that a particular primary servicer remain in place with respect to any
or all of the Mortgage Loans.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a copy (except
in the case of any letter of credit referred to in clause (xi)(D) below) to the
applicable Master Servicer and the Special Servicer within ten (10)
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Business Days after the Closing Date) the documents and instruments specified
below under clauses (i), (ii), (vii), (ix)(A) and (xi)(D) and shall, not later
than the date that is 30 days after the Closing Date, deliver or cause to be
delivered to the Trustee (with a copy to the applicable Master Servicer) the
remaining documents and instruments specified below, in each case with respect
to each Mortgage Loan that is a Serviced Trust Mortgage Loan (the documents and
instruments specified below, collectively, the "Mortgage File"). The Mortgage
File for each Mortgage Loan that is a Serviced Trust Mortgage Loan shall contain
the following documents:
(i) (A) the original executed Mortgage Note including any power
of attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Citigroup Commercial Mortgage Trust 2008-C7,
Commercial Mortgage Pass-Through Certificates, Series 2008-C7", or in blank
(or a lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto), and (B) if the subject Mortgage Loan is part of a
Serviced Loan Combination, a copy of the executed Mortgage Note for each
related Serviced Non-Trust Mortgage Loan;
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office or, in the case of
a MERS Mortgage Loan (as defined below), an original or a copy of the
Mortgage, together with any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office, with language noting the presence of the MIN (as defined
below) of such Mortgage Loan and language indicating that such Mortgage
Loan is a MERS Mortgage Loan;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with any
and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office or, in
the case of a MERS Mortgage Loan, an original or a copy of any related
Assignment of Leases (if such item is a document separate from the
Mortgage), together with any and all intervening assignments thereof, in
each case (unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the applicable
recording office, with language noting the presence of the MIN of such
Mortgage Loan and language indicating that such Mortgage Loan is a MERS
Mortgage Loan;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank, the name
of the assignee), of (A) the Mortgage, (B) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (C) any other
recorded document relating to the subject Mortgage Loan otherwise included
in the Mortgage File, in favor of "Xxxxx Fargo Bank, N.A., as trustee for
the registered holders of Citigroup Commercial Mortgage Trust 2008-C7,
Commercial Mortgage Pass-Through Certificates, Series 2008-C7" (and, if the
subject Mortgage Loan is part of a Serviced Loan Combination, also on
behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)), or
in blank or, in the case of a MERS Mortgage Loan, evidence from MERS
indicating the Trustee's ownership of such Mortgage Loan on the MERS(R)
Commercial System and the
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Trustee as the beneficiary of the assignment(s) of (x) the Mortgage, (y)
any related Assignment of Leases (if such item is a document separate from
the Mortgage) and (z) any other recorded document relating to such Mortgage
Loan otherwise included in the Mortgage File;
(v) an original assignment of all unrecorded documents relating
to the subject Mortgage Loan (to the extent not already covered by the
assignment to be delivered pursuant to clause (iv) above), in favor of
"Xxxxx Fargo Bank, N.A., as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2008-C7, Commercial Mortgage Pass-Through
Certificates, Series 2008-C7" (and, if the subject Mortgage Loan is part of
a Serviced Loan Combination, also on behalf of the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), or in blank or, in the case of a
MERS Mortgage Loan (to the extent not already evidenced pursuant to clause
(iv) above), evidence from MERS indicating the Trustee's ownership of the
Mortgage Loan on the MERS(R) Commercial System and the Trustee as
beneficiary of the assignment(s) of unrecorded documents related to the
Mortgage Loan;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or specimen version of, or a marked commitment for, the
policy that has been executed by an authorized representative of the title
company or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company)
to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements when it
was to deliver the subject Mortgage File on or prior to the Closing Date),
unless not yet returned by the applicable filing office; and, if there is
an effective UCC Financing Statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original UCC
Financing Statement assignment, in form suitable for filing in favor of
"Xxxxx Fargo Bank, N.A., as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2008-C7, Commercial Mortgage Pass-Through
Certificates, Series 2008-C7" (and, if the subject Mortgage Loan is part of
a Serviced Loan Combination, also on behalf of the related Serviced
Non-Trust Mortgage Loan Noteholder(s)), as assignee, or in blank or, in the
case of a MERS Mortgage Loan, evidence from MERS indicating the Trustee's
ownership of such Mortgage Loan on the MERS(R) Commercial System and the
Trustee as the beneficiary of any effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements;
(ix) an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) lender's environmental
insurance policy or indemnity agreement or (D) lease enhancement policy;
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(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor and any intercreditor agreement relating to
mezzanine debt related to the Mortgagor;
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement, (D) lockbox agreement and cash management agreement or
(E) letter of credit relating to a Trust Mortgage Loan (with the original
of any such letter of credit to be delivered to the applicable Master
Servicer); and
(xii) with respect to hospitality properties, a copy of any
related franchise agreement, any related "comfort" letter and any transfer
documents with respect to that comfort letter.
No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee the documents and
instruments specified below with respect to each of the Mortgage Loans that are
Outside Serviced Trust Mortgage Loans (with respect to each such Mortgage Loan,
the documents and instruments specified below, collectively, the "Mortgage
File"). The Mortgage File for each Mortgage Loan that is an Outside Serviced
Trust Mortgage Loan shall contain the following documents:
(x) the original executed Mortgage Note for the subject Mortgage Loan
including any power of attorney related to the execution thereof, together with
any and all intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, N.A., as trustee for the registered
holders of Citigroup Commercial Mortgage Trust 2008-C7, Commercial Mortgage
Pass-Through Certificates, Series 2008-C7" or in blank, (or a lost note
affidavit and indemnity with a copy of such Mortgage Note attached thereto);
(y) an executed copy of the related Co-Lender Agreement; and
(z) an executed copy of the related Outside Servicing Agreement (or,
if not delivered on the Closing Date, within five (5) Business Days of such
Outside Servicing Agreement being duly delivered and becoming effective).
The Seller hereby further represents and warrants that with respect to
the Outside Serviced Trust Mortgage Loans, it has delivered to the Outside
Trustee the documents constituting the "mortgage file" within the meaning of the
related Outside Servicing Agreement in connection with its sale of one or more
of the related Non-Trust Mortgage Loans to the depositor for the commercial
mortgage securitization transaction to which such Outside Servicing Agreement
relates.
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to any Crossed Loan, the existence in the Mortgage File
for any such Crossed Loan of any document required to be included therein shall
be sufficient to satisfy the requirements of this Agreement for delivery of such
document as a part of the Mortgage File for the other Crossed Loan(s) in the
subject Crossed Group, to the extent that such document is also required to be
part of the Mortgage File for such other Crossed Loan(s) in the subject Crossed
Group.
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References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
For purposes of this Section 2(c):
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS Mortgage Loan" means any Mortgage Loan registered with MERS on
the MERS(R) Commercial System, as to which MERS is acting as mortgagee, solely
as nominee for the Seller and its successors and assigns, which Mortgage Loans
are identified on Schedule V hereto.
"MERS(R) Commercial System" means an electronic registry maintained by
MERS that tracks changes in loan servicing and beneficial ownership rights.
"MIN" means the mortgage identification number on the MERS(R)
Commercial System for any MERS Mortgage Loan.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans), promptly (and
in any event, as to any such Mortgage Loan, within 90 days following the later
of (i) the Closing Date and (ii) the delivery of the related Mortgage(s),
Assignment(s) of Leases, recordable documents and UCC Financing Statements to
the Trustee) complete (if and to the extent necessary) and cause to be submitted
for recording or filing, as the case may be, in favor of the Trustee in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, referred to in Sections 2(c)(iv)(A), (B) and (C) and each assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the recorded
original of each such assignment of recordable documents to be delivered to the
Trustee or its designee following recording, and shall cause the file copy of
each such UCC Financing Statement to be delivered to the Trustee or its designee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain therefrom a
copy of the recorded original, which shall be delivered to the Trustee or its
designee. If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, the Seller shall
promptly prepare or cause to be prepared a substitute therefor or cure such
defect, as the case may be, and thereafter cause the same to be duly recorded or
filed, as appropriate. The Seller shall be responsible for the out-of-pocket
costs and expenses of the Purchaser, any party to the Pooling and Servicing
Agreement, the Recording/Filing Agent and itself in connection with its
performance of the recording, filing and delivery obligations contemplated
above.
If, on the Closing Date as to any MERS Mortgage Loan, the Seller does
not deliver written evidence of the Trustee's ownership of such Mortgage Loan on
the MERS(R) Commercial System showing the Trustee as a beneficiary of the
assignment referred to in each of clause (iv) and (v) of the definition of
"Mortgage File" or the UCC Financing Statements referred to in clause (viii) of
the definition of "Mortgage File", the Seller may satisfy the delivery
requirements of this Agreement and
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Section 2.01(b) of the Pooling and Servicing Agreement by delivering such
evidence of ownership within 90 days following the Closing Date; provided that,
during such time, the Seller shall execute any documents requested by the
applicable Master Servicer or the Special Servicer with respect to such MERS
Mortgage Loan that, in the reasonable discretion of such Master Servicer or the
Special Servicer (exercised in accordance with the Servicing Standard), are
necessary to evidence the Trustee's ownership of, or are otherwise required for
an immediate servicing need with respect to, such Mortgage Loan.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications
and internal correspondence, credit underwriting or due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) and that are not required to be part of the
Mortgage File in accordance with the definition thereof (including, without
limitation, any original letters of credit relating to any Mortgage Loan); and
(ii) within two (2) Business Days after the Closing Date, any and all escrow
amounts and reserve amounts in the Seller's possession or under its control that
relate to the Mortgage Loans (other than an Outside Serviced Trust Mortgage
Loan).
(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller which secure any Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan). Without limiting the generality of the foregoing,
if a draw upon any such letter of credit is required before its transfer to the
Trust Fund can be completed, the Seller shall draw upon such letter of credit
for the benefit of the Trust pursuant to written instructions from the
applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a limited partnership organized and validly
existing and in good standing under the laws of the State of New York and
possesses all requisite authority, power, licenses, permits and franchises
to carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations
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limit the enforceability of the provisions of this Agreement which purport
to provide indemnification from liabilities under applicable securities
laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the financial condition or the
operations of the Seller or its properties (taken as a whole) or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment,
order, writ, injunction, decree, law or regulation that would, in the
Seller's reasonable and good faith judgment, materially and adversely
affect the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the execution
of this Agreement or the performance by the Seller of its obligations under
this Agreement (except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions involving the Seller
contemplated by this Agreement except as have previously been obtained, and
no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
contemplated by this Agreement. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
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(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedules III and IV. References in this Agreement to "Breach" mean a breach of
any such representations and warranties made pursuant to this Section 3(b) with
respect to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), at the Seller's option, (i) cure such Document
Defect or Breach, as the case may be, in all material respects, or, if such
Document Defect or Breach (other than omissions solely due to a document not
having been returned by the related recording office) cannot be cured within
such 90-day period, (ii) repurchase the affected Mortgage Loan at the applicable
Purchase Price not later than the end of such 90-day period, or (iii) substitute
a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the applicable Master Servicer for
deposit into its Collection Account, any Substitution Shortfall Amount in
connection therewith; provided that, if a Document Defect or Breach is capable
of being cured but not within such 90-day period and the Seller has commenced
and is diligently proceeding with the cure of such Document Defect or Breach
within such 90-day period, then unless such Document Defect or Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have
an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute for the related Mortgage Loan); and provided, further,
that with respect to such additional 90-day period the Seller shall have
delivered an officer's certificate to the Trustee setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Document Defect or Breach will be cured within the
additional 90-day period. For a period of two years from the Closing Date, so
long as there remains any Mortgage File relating to a Mortgage Loan as to which
there is an uncured Document Defect that, to the Seller's knowledge existed as
of the Closing Date, and that materially and adversely affects the value of the
applicable Mortgage Loan or the interests of the Certificateholders therein, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect remains uncured and as to the actions being
taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
9
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided above, unless: (x) such other Crossed
Loans in such Crossed Group satisfy the Crossed Loan Repurchase Criteria; (y)
the Seller (at its expense) shall have furnished the Trustee with an Opinion of
Counsel to the effect that the repurchase of or substitution for the affected
Crossed Loan only, including, without limitation, any modification required with
respect to such repurchase or substitution, shall not cause an Adverse REMIC
Event; and (z) the repurchase of or substitution for the affected Crossed Loan
only shall satisfy all other criteria for repurchase or substitution, as
applicable, of Mortgage Loans set forth herein or in the Pooling and Servicing
Agreement. If the conditions set forth in clauses (x), (y) and (z) of the prior
sentence are satisfied, the Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Document Defect or
Breach exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. The Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Loan Repurchase Criteria have been satisfied, so long as the
scope and cost of such Appraisal has been approved by the Seller (such approval
not to be unreasonably withheld). To the extent that the Seller is required to
purchase or substitute for a Crossed Loan hereunder in the manner prescribed
above while the Purchaser continues to hold any other Crossed Loans in such
Crossed Group, neither the Seller nor the Purchaser shall enforce any remedies
against the other's Primary Collateral, but each is permitted to exercise
remedies against the Primary Collateral securing its respective Crossed Loans,
including, with respect to the Purchaser, the Primary Collateral securing the
Crossed Loans still held by the Purchaser, so long as such exercise does not
materially impair the ability of the other party to exercise its remedies
against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section 3(d),
if there is a Document Defect or Breach (which Document Defect or Breach shall
materially and adversely affect the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and
10
such Mortgaged Property(ies) are, in fact, released) and, to the extent not
covered by the applicable release price (if any) required under the related
Mortgage Loan documents, the Seller pays (or causes to be paid) any additional
amounts necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by the applicable Master Servicer, the Special Servicer, the Trustee or
the Trust Fund in connection with such release, (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the related
Mortgage Loan documents and the Seller provides an opinion of counsel to the
effect that such release would not cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC under the Code or result in
the imposition of any tax on "prohibited transactions" or "contributions" after
the Startup Day under the REMIC Provisions and (iii) the Seller obtains from
each Rating Agency then rating the Certificates and delivers to the Trustee and
the applicable Master Servicer written confirmation that such release would not
cause the then-current ratings of the Certificates rated by it to be qualified,
downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master Servicer and the
Special Servicer shall release to the Seller any Escrow Payments and Reserve
Funds held by it in respect of such repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
(g) If, upon any payment in full with respect to any MERS Mortgage
Loan, none of the Trustee, the applicable Master Servicer or any Sub-Servicer of
such Mortgage Loan is registered with MERS and is unable to reflect the release
of the related Mortgage on the MERS(R) Commercial System, the Seller shall take
all necessary action to reflect the release of such Mortgage on the MERS(R)
Commercial System and shall take such other actions as are necessary to enable
such Master Servicer and the Trustee to comply with the provisions of Section
3.10 of the Pooling and Servicing Agreement and any other provisions relating to
the release of the Mortgage Loan or the related Mortgage File.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the full corporate power and authority and legal right to acquire the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the Trustee.
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(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (i) any term or provision of the
Purchaser's certificate of incorporation or bylaws, (ii) any term or provision
of any material agreement, contract, instrument or indenture, to which the
Purchaser is a party or by which the Purchaser is bound, or (iii) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets,
which default might have consequences that would, in the Purchaser's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would, in
the Purchaser's reasonable and good faith judgment, materially and adversely
affect the validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default
12
might have consequences that would materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or might
have consequences that would materially and adversely affect its performance
hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxxxx Xxxxxxxx & Xxxx LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in Section 6 of
this Agreement (the "Closing Documents"), in such forms as are agreed upon and
acceptable to CCMSI, the Seller, the Dealers and their respective counsel in
their reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released to
the Trustee (or a Custodian on its behalf) and the applicable Master Servicer,
respectively, all documents represented to have been or required to be delivered
to the Trustee and such Master Servicer on or before the Closing Date pursuant
to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall each have the ability
to comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it to
CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) CCMSI and the Dealers shall have received letters from an
independent accounting firm reasonably acceptable to CCMSI and the Seller in
form satisfactory to CCMSI, relating to certain information regarding the
Mortgage Loans and Certificates as set forth in the Prospectus, the Prospectus
Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated the
Closing Date, and upon which CCMSI and the Dealers may rely, to the effect that:
(i) the representations and warranties
13
of the Seller in this Agreement and the Indemnification Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date, subject, in the case of the representations and
warranties made by the Seller pursuant to Section 3(b) of this Agreement, to the
exceptions to such representations and warranties set forth in Schedules III and
IV to this Agreement; and (ii) the Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
that are required under this Agreement to be performed or satisfied at or prior
to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing Date,
and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) True and complete copies of the certificate of limited partnership
and partnership agreement of the Seller (as certified to by the Secretary or an
assistant secretary of the Seller), and a certificate of existence of the Seller
issued by the State of New York not earlier than thirty (30) days prior to the
Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and in form and substance
reasonably satisfactory to CCMSI, the Dealers and their respective counsel and
the Rating Agencies, dated the Closing Date and addressed to CCMSI, the Trustee,
the Dealers and the Rating Agencies, together with such other written opinions
as may be required by the Rating Agencies;
(f) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the sale of the Mortgage Loans by the Seller
to the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion may
be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
in form and substance reasonably satisfactory to the Seller and its counsel,
dated the Closing Date and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Initial Aggregate Mortgage
Loan Balance represents of the Initial Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding, to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees) incurred in
connection with the securitization of the Mortgage Loans and the Other Mortgage
Loans; (iv) the filing fee charged by the Securities and Exchange Commission for
registration of the Certificates so registered; (v) the fees charged by the
Rating Agencies to rate the Certificates so rated; (vi) the fees and
14
disbursements of a firm of certified public accountants selected by the
Purchaser and the Seller with respect to numerical information in respect of the
Mortgage Loans, the Other Mortgage Loans and the Certificates included in the
Prospectus, the Memorandum and other customary offering materials, including the
cost of obtaining any "comfort letters" with respect to such items; (vii) the
reasonable out-of-pocket costs and expenses in connection with the qualification
or exemption of the Certificates under state securities or "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Dealers. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
The Seller and the Purchaser agree that each of the Underwriters and
the Placement Agents shall be a third party beneficiary of the Seller's
obligation to pay the costs, fees and expenses specified in this Section 7.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Purchaser or any of its agents, including, without limitation,
the Custodian on behalf of the Trustee, of the Mortgage Notes, and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be possession by the secured party for purposes
of perfecting the security interest pursuant to Section 9-313 of the Uniform
Commercial Code of the applicable jurisdiction; and (v) notifications to persons
(other than the Trustee) holding such property, and acknowledgments, receipts or
confirmations from persons (other than the Trustee) holding such property, shall
be deemed notifications to, or acknowledgments, receipts or confirmations from,
securities intermediaries, bailees or agents (as applicable) of the secured
party for the purpose of perfecting such security interest under applicable law.
The Seller and the Purchaser shall, to the extent consistent with this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans, such
security interest would be a perfected security interest of first priority under
applicable law and will be maintained as such
15
throughout the term of this Agreement and the Pooling and Servicing Agreement,
and in connection therewith the Seller authorizes the Purchaser to file any and
all appropriate Uniform Commercial Code financing statements.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by CCMSI to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS AGREEMENT AND
THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL
BE GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT. THE PARTIES HERETO HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE,
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the
16
action, suit or proceeding shall dismiss or discontinue it without the
concurrence of the other party, such other party shall be deemed the prevailing
party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. Entire Agreement; Amendments. This Agreement supercedes
all prior agreements and understandings relating to the subject matter hereof.
No term or provision of this Agreement may be waived or modified unless such
waiver or modification is in writing and signed by a duly authorized officer of
the party against whom such waiver or modification is sought to be enforced. No
amendment to the Pooling and Servicing Agreement which relates to defined terms
contained therein, Section 2.01(d) thereof or the repurchase obligations or any
other obligations of the Seller shall be effective against the Seller (in such
capacity) unless the Seller shall have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with accountants designated by CCMSI and reasonably acceptable to the Seller in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge", such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
SECTION 21. No Third Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Sections 7 and 16.
SECTION 22. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating and
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
17
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
XXXXXXX XXXXX MORTGAGE COMPANY
By: XXXXXXX SACHS REAL ESTATE
FUNDING CORP.,
its General Partner
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
GSMC MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
Xxxxxxx Xxxxx Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx Xxxxxxxx
Facsimile Number: 000-000-0000
With a copy to:
Xxxxx Xxxxxxxx
Facsimile Number: 000-000-0000
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. Mortgage Loan Schedule. The information pertaining to each Mortgage Loan
set forth in the Mortgage Loan Schedule was true and accurate in all
material respects as of the Cut-off Date and contains all information
required by the Pooling and Servicing Agreement to be contained therein.
2. Legal Compliance - Origination. As of the date of its origination, such
Mortgage Loan complied in all material respects with, or was exempt from,
all requirements of federal, state or local law relating to the origination
of such Mortgage Loan; provided that the foregoing representation and
warranty does not address or otherwise cover any matters with respect to
federal, state or local law otherwise covered in this Schedule I.
3. Good Title; Conveyance. Immediately prior to the sale, transfer and
assignment to the Purchaser, the Seller had good and marketable title to,
and was the sole owner of, each Mortgage Loan, and the Seller is
transferring such Mortgage Loan free and clear of any and all liens,
pledges, charges or security interests of any nature encumbering such
Mortgage Loan, other than the rights of the holder of a related Non-Trust
Mortgage Loan pursuant to the related Co-Lender Agreement or a related
Outside Servicing Agreement. Upon consummation of the transactions
contemplated by the Mortgage Loan Purchase Agreement, the Seller will have
validly and effectively conveyed to the Purchaser all legal and beneficial
interest in and to such Mortgage Loan free and clear of any pledge, lien or
security interest, other than the rights of a holder of a Non-Trust
Mortgage Loan pursuant to the related Co-Lender Agreement or a related
Outside Servicing Agreement.
4. Future Advances. The proceeds of such Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the Mortgage Loan
has been disbursed but a portion thereof is being held in escrow or reserve
accounts pending the satisfaction of certain conditions relating to
leasing, repairs or other matters with respect to the Mortgaged Property),
and there is no requirement for future advances thereunder by the
mortgagee.
5. Legal, Valid and Binding Obligation; Assignment of Leases. Each related
Mortgage Note, Mortgage, Assignment of Leases (if contained in a document
separate from the Mortgage) and other agreement that evidences or secures
such Mortgage Loan and was executed in connection with such Mortgage Loan
by or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the related Mortgagor (subject to any non-recourse provisions
therein and any state anti-deficiency or market value limit deficiency
legislation), enforceable in accordance with its terms, except (i) that
certain provisions contained in such Mortgage Loan documents are or may be
unenforceable in whole or in part under applicable state or federal laws,
but neither the application of any such laws to any such provision nor the
inclusion of any such provisions renders any of the Mortgage Loan documents
invalid as a whole and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the rights and benefits afforded thereby and (ii) as such
enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting
the enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in
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equity or at law). The Assignment of Leases (as set forth in the related
Mortgage or in a document separate from the related Mortgage and related to
and delivered in connection with each Mortgage Loan) establishes and
creates a valid and enforceable first priority assignment of, or a valid
first priority security interest in, the related Mortgagor's right to
receive payments due under all leases, subleases, licenses or other
agreements pursuant to which any Person is entitled to occupy, use or
possess all or any portion of the Mortgaged Property, subject to any
license granted to the related Mortgagor to exercise certain rights and to
perform certain obligations of the lessor under such leases, and subject to
the limitations set forth above. The related Mortgage Note, Mortgage and
Assignment of Leases (if contained in a document separate from the
Mortgage) contain no provision limiting the right or ability of the Seller
to assign, transfer and convey the related Mortgage Loan to any other
Person.
6. No Offset or Defense. Subject to the limitations set forth in paragraph
(5), as of the date of its origination there was, and as of the Cut-off
Date there is, no valid right of offset and no valid defense, counterclaim,
abatement or right to rescission with respect to any of the related
Mortgage Notes, Mortgage(s) or other agreements executed in connection
therewith, except in each case, with respect to the enforceability of any
provisions requiring the payment of default interest, late fees, Additional
Interest, prepayment premiums or yield maintenance charges.
7. Assignment of Mortgage and Assignment of Assignment of Leases. Subject to
the limitations set forth in paragraph (5), each assignment of Mortgage and
assignment of Assignment of Leases from the Seller to the Trustee (or in
the case of an Outside Serviced Trust Mortgage Loan, the assignment in
favor of the current holder of the related Mortgage) constitutes the legal,
valid and binding assignment from the Seller. Any assignment of a Mortgage
and assignment of Assignment of Leases are recorded (or have been submitted
for recording) in the applicable jurisdiction. Notwithstanding the
foregoing representation of the Seller in this paragraph (7), if the
related Mortgage or Assignment of Leases has been recorded in the name of
MERS or its designee, no assignment of Mortgage or assignment of Assignment
of Leases in favor of the Trustee is required to be prepared or delivered
and instead, the Seller shall take all actions as are necessary to cause
the Trust to be shown as the owner of the Mortgage Loan on the records of
MERS for purposes of the system of recording transfers of beneficial
ownership of mortgages maintained by MERS.
8. Mortgage Lien. Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (and/or Ground Lease, if applicable),
subject to the limitations set forth in paragraph (5) and the following
title exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions, rights
of way, easements and other matters of public record, (c) the exceptions
(general and specific) and exclusions set forth in the applicable Title
Policy (described in paragraph (12) below) or appearing of record, (d)
other matters to which like properties are commonly subject, (e) the right
of tenants (whether under ground leases, space leases or operating leases)
pertaining to the related Mortgaged Property and condominium declarations,
(f) if such Mortgage Loan is a Crossed Loan, the lien of the Mortgage for
the other Crossed Loan(s) in the related Crossed Group and (g) if such
Mortgage Loan is part of a Loan Combination, the rights of the holder of
the related Non-Trust Mortgage Loan pursuant to the related Co-Lender
Agreement or a related Outside Servicing Agreement, none of which
exceptions described in clauses (a) - (f) above, individually or in the
aggregate, materially and adversely interferes with (1) the current use of
the related Mortgaged Property, (2) the security
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intended to be provided by such Mortgage, (3) the Mortgagor's ability to
pay its obligations under the Mortgage Loan when they become due or (4) the
value of the related Mortgaged Property. The related Mortgaged Property is
free and clear of any mechanics' or other similar liens or claims which are
prior to or equal with the lien of the related Mortgage, except those which
are insured against by a lender's title insurance policy. To the Seller's
actual knowledge no rights are outstanding that under applicable law could
give rise to any such lien that would be prior or equal to the lien of the
related Mortgage, unless such lien is bonded over, escrowed for or covered
by insurance.
9. UCC Filings. If the related Mortgaged Property is operated as a hospitality
property, the Seller has filed or caused to be filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for filing
and recording), UCC Financing Statements in the appropriate public filing
and/or recording offices necessary at the time of the origination of the
Mortgage Loan to perfect a valid security interest in all items of personal
property reasonably necessary to operate such Mortgaged Property owned by
such Mortgagor and located on the related Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement as permitted under the terms of
the related Mortgage Loan documents or any other personal property leases
applicable to such personal property, which in any event will not
materially interfere with the security intended to be provided by the
related Mortgage, the current principal use and operation of the related
Mortgaged Property or the current ability of the related Mortgaged Property
to generate income sufficient to service the Mortgage Loan), to the extent
perfection may be effected pursuant to applicable law by recording or
filing, as the case may be. Subject to the limitations set forth in
paragraph (5), each related Mortgage (or equivalent document) creates a
valid and enforceable lien and security interest on the items of personalty
described above. No representation is made as to the perfection of any
security interest in rents or other personal property to the extent that
possession or control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
10. Taxes and Assessments. All real estate taxes and governmental assessments,
or installments thereof, which could be a lien on the related Mortgaged
Property and that prior to the Cut-off Date have become delinquent in
respect of each related Mortgaged Property have been paid, or an escrow of
funds in an amount sufficient to cover such payments has been established.
For purposes of this representation and warranty, real estate taxes and
governmental assessments and installments thereof shall not be considered
delinquent until the earlier of (a) the date on which interest and/or
penalties would first be payable thereon and (b) the date on which
enforcement action is entitled to be taken by the related taxing authority.
11. Condition of Mortgaged Property; No Condemnation. To the Seller's actual
knowledge, based solely upon due diligence customarily performed in
connection with the origination of comparable mortgage loans, as of the
Cut-off Date, (a) each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would affect materially and adversely the
value of such Mortgaged Property as security for the Mortgage Loan and (b)
there was no proceeding pending for the total or partial condemnation of
such Mortgaged Property. With respect to any related Mortgaged Property
that is located in counties in Alabama, Louisiana or Texas that, as of the
Cut-off Date, are listed on the Federal Emergency Management Agency's
("FEMA") internet website as having been designated by FEMA for "Individual
Assistance" or "Public Assistance"
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following Hurricane Xxxxxxx or Hurricane Xxxx, as of the Cut-off Date,
there is no material damage.
12. Title Insurance. The lien of each related Mortgage as a first priority lien
in the original principal amount of such Mortgage Loan (or in the case of a
Mortgage Loan secured by multiple Mortgaged Properties, an allocable
portion thereof) is insured by an ALTA lender's title insurance policy (or
a binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction (the "Title Policy"), insuring the originator of
the Mortgage Loan, its successors and assigns, subject only to the Title
Exceptions; such originator or its successors or assigns is the named
insured of such policy; such policy is assignable without consent of the
insurer and will inure to the benefit of the Trustee as mortgagee of record
(or, with respect to an Outside Serviced Trust Mortgage Loan, the holder of
the related Mortgage); such policy, if issued, is in full force and effect
and all premiums thereon have been paid; no claims have been made under
such policy and the Seller has not done anything, by act or omission, and
the Seller has no actual knowledge of any matter, which would impair or
diminish the coverage of such policy. The insurer issuing such policy is
either (x) a nationally-recognized title insurance company or (y) qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located to the extent required. The Title Policy contains no material
exclusion for, or alternatively it insures (unless such coverage is
unavailable in the relevant jurisdiction) against any loss due to (a) lack
of access to a public road and (b) encroachment of any material portion of
the improvements thereon.
13. Insurance. As of the Mortgage Loan origination date, and to the actual
knowledge of the Seller, as of the Cut-off Date, all insurance coverage
required under the related Mortgage Loan documents was in full force and
effect. Each Mortgage Loan requires insurance in such amounts and covering
such risks as were customarily acceptable to prudent commercial and
multifamily mortgage lending institutions lending on the security of
property comparable to the related Mortgaged Property in the jurisdiction
in which such Mortgaged Property is located, including requirements for (a)
a fire and extended perils insurance policy, in an amount (subject to a
customary deductible) at least equal to the lesser of (i) the replacement
cost of improvements located on such Mortgaged Property, or (ii) the
initial principal balance of the Mortgage Loan (or in the case of a
Mortgage Loan that is part of a Loan Combination, the initial aggregate
principal balance of the Loan Combination), and in any event, in an amount
necessary to prevent operation of any co-insurance provisions, (b) except
if such Mortgaged Property is operated as a mobile home park, business
interruption or rental loss insurance, in an amount at least equal to 12
months of operations of the related Mortgaged Property (or in the case of a
Mortgaged Property without any elevator, 6 months) and (c) comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent institutional
lenders. To the actual knowledge of the Seller, as of the Cut-off Date, all
premiums due and payable through the Closing Date have been paid and no
notice of termination or cancellation with respect to any such insurance
policy has been received by the Seller. Except for certain amounts not
greater than amounts which would be considered prudent by an institutional
commercial and multifamily mortgage lender with respect to a similar
mortgage loan and which are set forth in the related Mortgage, the related
Mortgage Loan documents require that any insurance proceeds in respect of a
casualty loss be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property or (ii) to the reduction of the
outstanding principal balance of the Mortgage Loan, subject in either case
to requirements with respect to leases at the related Mortgaged Property
and to other exceptions customarily provided for by prudent commercial and
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multifamily institutional lenders for similar loans. The insurance policies
each contain a standard mortgagee clause naming the Seller and its
successors and assigns as loss payee or additional insured, as applicable,
and each insurance policy provides that it is not terminable without 30
days prior written notice to the mortgagee (or, with respect to
non-payment, 10 days prior written notice to the mortgagee) or such lesser
period as prescribed by applicable law. The loan documents for each
Mortgage Loan (a) require that the Mortgagor maintain insurance as
described above or permit the mortgagee to require that the Mortgagor
maintain insurance as described above, and (b) permit the mortgagee to
purchase such insurance at the Mortgagor's expense if the Mortgagor fails
to do so. The insurer with respect to each policy is qualified to write
insurance in the relevant jurisdiction to the extent required.
14. No Material Default. (A) Other than payments due but not yet 30 days or
more delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed in connection with the servicing of comparable
mortgage loans by prudent commercial and multifamily institutional lenders,
(i) there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note(s), and (ii) there is no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration under the related
Mortgage or Mortgage Note(s), (B) the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note(s), unless a written waiver to that effect is contained in
the related Mortgage File being delivered pursuant to the Pooling and
Servicing Agreement, and (C) pursuant to the terms of the related Mortgage
Loan documents, no Person or party other than the holder of such Mortgage
Note(s) (or with respect to an Outside Serviced Trust Mortgage Loan, the
applicable servicer as permitted by the applicable Outside Servicing
Agreement) may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note(s); 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
representation and warranty made by the Seller elsewhere in this Schedule I
(including any schedule or exhibit hereto).
15. Payment Record. As of the Closing Date, each Mortgage Loan is not, and in
the prior 12 months (or since the date of origination if such Mortgage Loan
has been originated within the past 12 months), has not been, 30 days or
more past due in respect of any Scheduled Payment.
16. Servicing. The servicing and collection practices used by the Seller (or
any servicer acting on its behalf) with respect to the Mortgage Loan have
been, in all respects, legal and have met customary industry standards for
servicing of commercial loans for conduit loan programs.
17. Reserved.
18. Qualified Mortgage. Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard to
Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage, or any substantially similar successor
provision). Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and
such
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interest in real property was the only security for such Mortgage Loan as
of the Testing Date (as defined below), or (b) the fair market value of the
interest in real property which secures such Mortgage Loan was at least
equal to 80% of the principal amount of the Mortgage Loan (i) as of the
Testing Date, or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in real
property shall first be reduced by (1) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (B) the "Testing Date" shall be the
date on which the referenced Mortgage Loan was originated unless (1) such
Mortgage Loan was modified after the date of its origination in a manner
that would cause a "significant modification" of such Mortgage Loan within
the meaning of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such Mortgage Loan
was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its origination
and at a time when such Mortgage Loan was not in default or when default
with respect to such Mortgage Loan was not reasonably foreseeable, the
Testing Date shall be the date upon which the latest such "significant
modification" occurred. Each yield maintenance payment and prepayment
premium payable under the Mortgage Loans is a "customary prepayment
penalty" within the meaning of Treasury Regulations Section 1.860G-1(b)(2).
19. Environmental Conditions and Compliance. One or more environmental site
assessments or updates thereof were performed by an environmental
consulting firm independent of the Seller or the Seller's affiliates with
respect to each related Mortgaged Property during the 18-months preceding
the origination of the related Mortgage Loan, and the Seller, having made
no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s) or updates referenced herein, has no
actual knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property
that was not disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term is
defined in the Standard Practice for Environmental Site Assessments: Phase
I Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM), with
respect to the related Mortgaged Property and the same have not been
subsequently addressed in all material respects, then either (i) an escrow
greater than or equal to 100% of the amount identified as necessary by the
environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the Mortgagor has covenanted in the
Mortgage Loan documents to perform such work), (ii) the related Mortgagor
or other responsible party having financial resources reasonably estimated
to be adequate to address the REC is required to take such actions or is
liable for the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or regulation,
(iii) the Mortgagor has provided an environmental insurance policy, (iv) an
operations and maintenance plan has been or will be implemented or (v) such
conditions or circumstances were investigated further and a qualified
environmental consulting firm recommended no further investigation or
remediation.
20. Customary Mortgage Provisions. Each related Mortgage Note, Mortgage and
Assignment of Leases (if contained in a document separate from the
Mortgage) contain customary and enforceable provisions, subject to the
limitations and exceptions set forth in paragraph (5) and applicable state
law, for comparable mortgaged properties similarly situated such as to
render the rights and remedies of the holder thereof adequate for the
practical realization against the
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Mortgaged Property of the benefits of the security intended to be provided
thereby, including realization by judicial or, if applicable, non-judicial
foreclosure.
21. Bankruptcy. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in, and no
Mortgaged Property is the subject of, any state or federal bankruptcy or
insolvency proceeding.
22. Whole Loan; No Equity Participation, Contingent Interest or Negative
Amortization. Except with respect to a Mortgage Loan that is part of a Loan
Combination, each Mortgage Loan is a whole loan. None of the Mortgage Loans
contain any equity participation, preferred equity component or shared
appreciation feature by the mortgagee nor does any Mortgage Loan provide
the mortgagee with any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
23. Transfers and Subordinate Debt. Subject to certain exceptions which are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property, each Mortgage Loan contains a "due on sale" or
other such provision for the acceleration of the payment of the unpaid
principal balance of such Mortgage Loan if, without the consent of the
holder of the Mortgage or complying with the requirements of the related
Mortgage Loan documents, (a) the related Mortgaged Property, or any
controlling or majority equity interest in the related Mortgagor, is
directly or indirectly pledged, transferred or sold, other than as related
to (i) family and estate planning transfers, (ii) transfers to certain
affiliates as defined in the related Mortgage Loan documents, (iii)
transfers of less than a controlling interest in a Mortgagor, (iv) a
substitution or release of collateral within the parameters of paragraph
(26) below, or, (v) the enforcement of rights by a mezzanine lender in
connection with any mezzanine debt which existed or is permitted under the
related Mortgage Loan documents, or (b) the related Mortgaged Property is
encumbered with a subordinate lien or security interest against the related
Mortgaged Property, other than (i) any Non-Trust Mortgage Loan that is part
of the same Loan Combination as any Mortgage Loan or any subordinate debt
that existed at origination or is permitted under the related Mortgage Loan
documents, (ii) debt secured by furniture, fixtures, equipment and other
personal property in the ordinary course of business or (iii) any Crossed
Loan that is part of the same Crossed Group as the subject Mortgage Loan.
Except as related to (a)(i), (ii), (iii), (iv) or (v), above, no Mortgage
Loan may be assigned by the Mortgagor to another entity without the
mortgagee's consent.
24. Waivers and Modification. Except as set forth in the related Mortgage File,
the terms of the related Mortgage Note and Mortgage(s) have not been
waived, modified, altered, satisfied, impaired, canceled, subordinated or
rescinded in any manner which materially interferes with the security
intended to be provided by such Mortgage.
25. Inspection. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate of the originator during the 12
month period prior to the related origination date.
26. Releases of Mortgaged Property. (A) Since origination, no material portion
of the related Mortgaged Property has been released from the lien of the
related Mortgage in any manner which materially and adversely affects the
value of the Mortgage Loan or materially interferes with the security
intended to be provided by such Mortgage; and (B) the terms of the related
Mortgage Loan documents do not permit the release of any portion of the
Mortgaged Property from the lien of the Mortgage except (i) in
consideration of payment in full therefor, (ii) in
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connection with the substitution of all or a portion of the Mortgaged
Property in exchange for delivery of "government securities" within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940, as
amended, (iii) where such portion to be released was not considered
material for purposes of underwriting the Mortgage Loan and such release
was contemplated at origination, (iv) where such release is conditioned on
the satisfaction of certain underwriting and other requirements, including
payment of a release price representing adequate consideration for such
Mortgaged Property or the portion thereof to be released, or (v) in
connection with the substitution of a replacement property in compliance
with REMIC Provisions.
27. Local Law Compliance. To the Seller's actual knowledge, based upon a letter
from governmental authorities, a legal opinion, an endorsement to the
related title policy, or other due diligence considered reasonable by
prudent commercial and multifamily mortgage lenders, taking into account
the location of the related Mortgaged Property, as of the date of
origination of such Mortgage Loan and as of the Cut-off Date, there are no
material violations of any applicable zoning ordinances, building codes and
land laws applicable to the Mortgaged Property or the use and occupancy
thereof which (a) are not insured by the Title Policy or a law and
ordinance insurance policy or (b) would have a material adverse effect on
the value, operation or net operating income of the Mortgaged Property.
28. Improvements. To the Seller's actual knowledge based on the Title Policy or
surveys obtained in connection with the origination of each Mortgage Loan,
none of the material improvements which were included for the purposes of
determining the appraised value of the related Mortgaged Property at the
time of the origination of the Mortgage Loan lies outside of the boundaries
and building restriction lines of such property (except Mortgaged
Properties which are legal non-conforming uses), to an extent which would
have a material adverse affect on the value of the Mortgaged Property or
related Mortgagor's use and operation of such Mortgaged Property (unless
affirmatively covered by the related Title Policy) and no improvements on
adjoining properties encroached upon such Mortgaged Property to any
material and adverse extent (unless affirmatively covered by the related
Title Policy).
29. Single Purpose Entity. With respect to each Mortgage Loan with a Cut-off
Date Balance in excess of $5,000,000, the related Mortgagor has covenanted
in its organizational documents and/or the Mortgage Loan documents to own
no significant asset other than the related Mortgaged Property and assets
incidental to its ownership and operation of such Mortgaged Property, and
to hold itself out as being a legal entity, separate and apart from any
other Person.
30. Advance of Funds. (A) After origination, the Seller has not, directly or
indirectly, advanced any funds to the Mortgagor, other than pursuant to the
related Mortgage Loan documents; and (B) to the Seller's actual knowledge,
no funds have been received from any Person other than the Mortgagor, for
or on account of payments due on the Mortgage Note.
31. Litigation or Other Proceedings. As of the date of origination and, to the
Seller's actual knowledge, as of the Cut-off Date, there was no pending
action, suit or proceeding, or governmental investigation of which it has
received notice, against the Mortgagor or the related Mortgaged Property
the adverse outcome of which could reasonably be expected to materially and
adversely affect (i) such Mortgagor's ability to pay its obligations under
the Mortgage Loan, (ii) the security intended to be provided by the
Mortgage Loan documents or (iii) the current use of the Mortgaged Property.
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32. Trustee Under Deed of Trust. As of the date of origination, and, to the
Seller's actual knowledge, as of the Cut-off Date, if the related Mortgage
is a deed of trust, a trustee, duly qualified under applicable law to serve
as such, has either been properly designated and serving under such
Mortgage or may be substituted in accordance with the Mortgage and
applicable law.
33. Usury. The Mortgage Loan and the interest contracted for (exclusive of any
default interest, late charges, yield maintenance charge or prepayment
premiums) complied as of the date of origination with, or is exempt from,
applicable state or federal laws, regulations and other requirements
pertaining to usury.
34. Other Collateral. Except with respect to the Non-Trust Mortgage Loan that
is part of a Loan Combination or any Crossed Loan, to the Seller's
knowledge, the related Mortgage Note is not secured by any collateral that
secures a mortgage loan that is not in the Trust Fund.
35. Flood Insurance. If the improvements on the Mortgaged Property are located
in a federally designated special flood hazard area, the Mortgagor is
required to maintain or the mortgagee maintains, flood insurance with
respect to such improvements and such policy is in full force and effect.
36. Escrow Deposits. All escrow deposits and payments required to be deposited
with the Seller or its agent in accordance with the Mortgage Loan documents
have been (or by the Closing Date will be) so deposited, are in the
possession of or under the control of the Seller or its agent (or, with
respect to an Outside Serviced Trust Mortgage Loan, in the possession of or
under the control of the Outside Trustee or its agent under the applicable
Outside Servicing Agreement), and there are no deficiencies in connection
therewith.
37. Licenses and Permits. To the Seller's actual knowledge, based on the due
diligence customarily performed in the origination of comparable mortgage
loans by prudent commercial and multifamily mortgage lending institutions
considering the related geographic area and properties comparable to the
related Mortgaged Property, (i) as of the date of origination of the
Mortgage Loan, the related Mortgagor, the related lessee, franchisor or
operator was in possession of all material licenses, permits and
authorizations then required for use of the related Mortgaged Property,
and, (ii) as of the Cut-off Date, the Seller has no actual knowledge that
the related Mortgagor, the related lessee, franchisor or operator was not
in possession of such licenses, permits and authorizations.
38. Organization of Mortgagors; Affiliation with other Mortgagors. With respect
to each Mortgage Loan, in reliance on certified copies of the
organizational documents of the Mortgagor delivered by the Mortgagor in
connection with the origination of such Mortgage Loan, the Mortgagor is an
entity organized under the laws of a state of the United States of America,
the District of Columbia or the Commonwealth of Puerto Rico. Except with
respect to any Crossed Loan, no Mortgage Loan has a Mortgagor that is an
affiliate of another Mortgagor.
39. Fee Simple Interest. Except with respect to the Mortgage Loans listed on
Schedule VI, the Mortgage Loan is secured in whole or in material part by
the fee simple interest in the related Mortgaged Property.
40. Recourse. Each Mortgage Loan is non-recourse to the related Mortgagor
except that the Mortgagor has agreed to be liable with respect to losses
incurred due to (i) fraud and/or other intentional material
misrepresentation, (ii) misapplication or misappropriation of rents
collected
I-9
in advance or received by the related Mortgagor after the occurrence of an
event of default and not paid to the mortgagee or applied to the Mortgaged
Property in the ordinary course of business, (iii) misapplication or
conversion by the Mortgagor of insurance proceeds or condemnation awards or
(iv) breach of the environmental covenants in the related Mortgage Loan
documents.
41. Access; Tax Parcels. The related Mortgaged Property (a) is located on or
adjacent to a dedicated road, or has access to an irrevocable easement
permitting ingress and egress, (b) is served by public utilities, water and
sewer (or septic facilities) and (c) constitutes one or more separate tax
parcels.
42. Financial Statements. The related Mortgage requires the related Mortgagor
to provide the mortgagee with operating statements and rent rolls on an
annual (or more frequent) basis or upon written request.
43. Defeasance. If the Mortgage Loan is a Defeasance Loan, the Mortgage Loan
documents (A) permit defeasance (1) no earlier than two years after the
Closing Date, and (2) only with substitute collateral constituting
"government securities" within the meaning of Treasury Regulations Section
1.860G-2(a)(8)(i) in an amount sufficient to make all scheduled payments
under the Mortgage Note through the related maturity date (or the first day
of such Mortgage Loan's "open period") and the balloon payment that would
be due on such date, (B) require the delivery of (or otherwise contain
provisions pursuant to which the mortgagee can require delivery of) (i) an
opinion to the effect that such mortgagee has a first priority perfected
security interest in the defeasance collateral, (ii) an accountant's
certification as to the adequacy of the defeasance collateral to make all
payments required under the related Mortgage Loan through the related
maturity date (or the first day of such Mortgage Loan's "open period") and
the balloon payment that would be due on such date, (iii) an Opinion of
Counsel that the defeasance complies with all applicable REMIC Provisions,
and (iv) assurances from the Rating Agencies that the defeasance will not
result in the withdrawal, downgrade or qualification of the ratings
assigned to the Certificates and (C) contain provisions pursuant to which
the mortgagee can require the Mortgagor to pay expenses associated with a
defeasance (including rating agencies' fees, accountants' fees and
attorneys' fees). Such Mortgage Loan was not originated with the intent to
collateralize a REMIC offering with obligations that are not real estate
mortgages.
44. Authorization in Jurisdiction. To the extent required under applicable law
and necessary for the enforcement of the Mortgage Loan, as of the date of
origination and at all times it held the Mortgage Loan, the originator of
such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located.
45. Capital Contributions. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan documents.
46. Subordinate Debt. Except with respect to any Non-Trust Mortgage Loan that
is part of a Loan Combination or any Crossed Loan, none of the Mortgaged
Properties are encumbered and none of the Mortgage Loan documents permit
the related Mortgaged Property to become encumbered without the prior
written consent of the holder of the Mortgage Loan or as described above in
paragraph (23), by any lien securing the payment of money junior to, of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmen's liens that become payable after the Cut-off Date).
I-10
47. Location of Properties Securing Multifamily Mortgage Loans. Each Mortgaged
Property securing a Mortgage Loan in Loan Group No. 2 (the "Multifamily
Loan Group") is located in the United States or in its territories (Puerto
Rico, the U.S. Virgin Islands, Guam).
48. Number of Units at Multifamily Properties. Each Mortgage Loan in the
Multifamily Loan Group is secured by a Mortgaged Property or properties
each of which contains at least five dwelling units.
49. Multifamily Property Construction Completed. Each Mortgaged Property that
relates to a Mortgage Loan in the Multifamily Loan Group and that is
improved by a newly-constructed multifamily apartment building has achieved
the percentage of occupancy indicated in Annex A to the Prospectus
Supplement.
50. Multifamily Dwelling Units. The borrower under each Mortgage Loan in the
Multifamily Loan Group has represented that all dwelling units in the
related Mortgaged Property are self-contained living units, each of which
includes a kitchen and a bathroom.
51. Mixed Use Multifamily Properties. Each Mortgage Loan in the Multifamily
Loan Group is secured by a Mortgaged Property that has both a housing
component and a non-housing component meeting all of the following
requirements:
A. The physical plan consists of:
(A) A single structure; or
(B) Multiple structures, some of which contain mixed uses but none of
which is entirely non-residential; or
(C) Multiple structures most of which are entirely residential, but
one or a small number of which consist of retail stores primarily
intended to serve residents of the project.
B. The aggregate gross commercial income does not exceed 20% of the
estimated total gross income.
52. Multifamily RV parks. No Mortgage Loan in the Multifamily Loan Group is
secured by a Mortgage on a manufactured housing park with respect to which
the aggregate gross income from homesites for dwelling units that are not
permanently attached to homesites, such as recreational vehicles, does not
exceed 20% of the estimated total gross income.
53. Multifamily Property Types. Except for any portion of a Mortgaged Property
that contains non-residential uses identified in paragraph (52) above, all
of the properties securing the Mortgage Loans in the Multifamily Loan Group
are being operated as multifamily rental housing (which may include student
housing, seniors housing, or mixed-use properties), cooperative housing or
manufactured housing parks and none of the Mortgaged Properties securing
the Mortgage Loans in the Multifamily Loan Group are hotel properties or
provide daily rentals.
54. Multifamily Use. The Mortgage Loan documents for each Mortgage Loan in the
Multifamily Loan Group contains covenants that prohibit a change of use of
the related Mortgaged Property without the mortgagee's prior consent.
I-11
55. Franchisor Comfort Letters. With respect to each Mortgage Loan secured by a
hospitality property with respect to which a franchisor comfort letter
exists, (A) (i) such comfort letter is freely assignable and (ii) all steps
necessary for the Trust to have the full benefit of the comfort letter have
been taken or shall be taken by the Seller within the timeframes
contemplated under such comfort letter, including, without limitation,
notification by the Seller to the franchisor of any such assignment, or (B)
the related franchisor has delivered to the Trustee a replacement comfort
letter in favor of the Trust containing the same terms and conditions as
the original comfort letter.
I-12
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
[NONE.]
I-13
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by the corresponding fee
interest in the related Mortgaged Property), the Seller represents and warrants
the following with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded and such Ground Lease permits the interest of the lessee
thereunder to be encumbered by the related Mortgage or, if consent of
the lessor thereunder is required, it has been obtained prior to the
Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed in
lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to the mortgagee and its assigns without the consent of the
lessor thereunder (or, if any such consent is required, it has been
obtained prior to the Closing Date).
3. Subject to the limitations on enforceability set forth in Paragraph 5
of Schedule I, such Ground Lease may not be amended, modified,
canceled or terminated without the prior written consent of the
mortgagee and any such action without such consent is not binding on
the mortgagee, its successors or assigns, except that termination or
cancellation without such consent may be binding on the mortgagee if
(i) an event of default occurs under the Ground Lease, (ii) notice is
provided to the mortgagee and (iii) such default is curable by the
mortgagee as provided in the Ground Lease but remains uncured beyond
the applicable cure period.
4. To the actual knowledge of the Seller, on the Closing Date such Ground
Lease is in full force and effect and other than payments due but not
yet 30 days or more delinquent, (i) there is no material default, and
(ii) there is no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease; 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 elsewhere in Schedule I and this
Schedule II to this Agreement or in any of the exceptions to the
representations and warranties in Schedule III and Schedule IV to this
Agreement.
5. The Ground Lease or ancillary agreement between the lessor and the
lessee (i) requires the lessor to give notice of any default by the
lessee to the mortgagee and (ii) provides that no notice given is
effective against the mortgagee unless a copy has been delivered to
the mortgagee in the manner described in the ground lease or ancillary
agreement.
6. Based on the Title Policy, the Ground Lease (i) is not subject to any
liens or encumbrances superior to, or of equal priority with, the
Mortgage, other than the ground lessor's fee interest and Title
Exceptions or (ii) is subject to a subordination, non-disturbance and
attornment agreement to which the mortgagee on the lessor's fee
interest in the Mortgaged Property is subject.
II-1
7. The mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the
lessee under the Ground Lease) to cure any curable default under such
Ground Lease after receipt of notice of such default before the lessor
thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of
which can be exercised by the mortgagee if the mortgagee acquires the
lessee's rights under the Ground Lease) that extends not less than 20
years beyond the Stated Maturity Date or if such Mortgage Loan is
fully amortizing, extends not less than 10 years after the
amortization term for the Mortgage Loan.
9. Under the terms of the Ground Lease and the related Mortgage Loan
documents (including, without limitation, any estoppel or consent
letter received by the mortgagee from the lessor), taken together, any
related insurance proceeds or condemnation award (other than de
minimis amounts for minor casualties or in respect of a total or
substantially total loss or taking) will be applied either to the
repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by it having the
right to hold and disburse such proceeds as repair or restoration
progresses, or to the payment or defeasance of the outstanding
principal balance of the Mortgage Loan, together with any accrued
interest (except in cases where a different allocation would not be
viewed as commercially unreasonable by any commercial mortgage lender,
taking into account the relative duration of the Ground Lease and the
related Mortgage and the ratio of the market value of the related
Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).
10. The Ground Lease does not restrict the use of the related Mortgaged
Property by the lessee or its successors or assigns in a manner that
would materially adversely affect the security provided by the related
mortgage.
11. The Ground Lease does not impose any restrictions on subletting that
would be viewed as commercially unreasonable by a prudent commercial
mortgage lender.
12. The ground lessor under such Ground Lease is required to enter into a
new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
REPRESENTATION DESCRIPTION OF EXCEPTION
------------------- -------------------------------------------------------------------------
(31) Loan No. 17 (Hilton Garden Inn). The Mortgagor has threatened litigation
LITIGATION OR OTHER against Xxxxxxx Xxxxx Commercial Mortgage Capital, L.P., as originator,
PROCEEDINGS alleging a breach of the interest rate lock agreement entered into prior
to the origination of the Mortgage Loan and has alleged damages of
$2,000,000. Xxxxxxx Sachs Commercial Mortgage Capital, L.P. believes the
allegations are without merit and intends to vigorously defend any claim
brought by the Mortgagor.
(38) Loan Xx. 00 (Xxxxxx Xxxxx Xxxxxxxxx XX - Xxxxxxxx) and Loan No. 43
ORGANIZATION OF & (Copper Beech Townhomes II - Allendale). The Mortgagors of these Mortgage
AFFILIATION WITH Loans have the same sponsor.
MORTGAGORS
(39) Loan No. 1 (One Liberty Plaza). The Mortgaged Property is a condominium.
FEE SIMPLE INTEREST The Mortgagor holds the fee interest with respect to most of the units
and a leasehold and reversionary interest with respect to the others. The
leasehold units revert to the Mortgagor upon termination of the lease for
any reason.
Loan No. 23 (Libbey Distribution Building). The Mortgagor holds a
leasehold interest with respect to the Mortgaged Property.
(41) Loan No. 2 (Scottsdale Fashion Square). One of the tax parcels occupied
Access; Tax Parcels by the Mortgaged Property is shared with another parcel (the "Release
Parcel"). The Release Parcel is owned by Scottsdale Fashion Square
Partnership, which is also the direct owner of 100% of the membership
interest in the Mortgagor. Scottsdale Fashion Square Partnership has
entered into a recorded agreement pursuant to which it agrees to pay to
Mortgagor its allocable portion of the taxes assessed against the shared
parcel. This agreement runs with the land and would be enforceable by any
successor owner of the Mortgaged Property. The Release Parcel will
undergo renovation, which may require an adjustment of the lot line
between the Release Parcel and the Mortgaged Property. As such, the loan
documents provide for the release of a certain non-material portions of
the collateral to facilitate such adjustment. Within 12 months of the
date of origination of the Mortgage Loan, the Mortgagor is required to
complete and such adjustment of the lot line and to bifurcate the
existing tax lot such that no portion of the Mortgaged Property is part
of a tax lot that also includes any real property that is not collateral
for the Mortgage Loan.
Loan No. 37 (Fairlane Green Phase II). The Mortgaged Property does not
constitute a separate tax parcel. The process is underway to cause the
parcel to be recognized and assessed as a separate tax parcel.
g
III-1
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
Loan No. 1 (One Liberty Plaza). Leasehold (with reversionary fee interest in
certain units of the Mortgaged Property) in
certain parcels of the Mortgaged Property.
Loan No. 23 (Libbey Distribution Building). Leasehold.
IV-1
SCHEDULE V
MERS MORTGAGE LOANS
LOAN NUMBER PROPERTY NAME
----------- ------------------------------------------------
1 Xxx Xxxxxxx Xxxxx
0 Xxxxxxxxxx Xxxxxxx Xxxxxx
6 Xxxx Terminal
10 Copper Beech Townhomes II - Columbia
17 Hilton Garden Inn
20 Technology Park
23 Libbey Distribution Building
29 Plaza Tower
36 US Bank Building
37 Fairlane Green Phase II
43 Copper Beech Townhomes II - Allendale
46 Xxxxxxx Plaza
00 Xxxxxxx Xxxxxx Xxxxx
54 Oaks Tower and Gardens
55 The Forum at Cherry Creek
57 Emergisoft Plaza
00 Xxxxxx Xxxxxx
68 Commonwealth Shopping Center
72 North Mar Center
74 Piedmont Park Medical Center
78 Shoppes at Xxxxxxxxxx
00 Xxxxxxxx Xxxxxx Xxxxxx - Xxxxxxx Xxxxxx Xxxxxxxx
00 000 Xxxxxxxxxx Xxxx
92 University Place
94 Willmar Shoppes Retail Center
V-1
SCHEDULE VI
MORTGAGE LOANS SECURED BY A LEASEHOLD
INTEREST IN ALL OR A MATERIAL PORTION OF
THE RELATED MORTGAGED PROPERTY
Xxx Xxxxxxx Xxxxx
Xxxxxx Xxxxxxxxxxxx Xxxxxxxx
XX-0
ANNEX A
MORTGAGE LOAN SCHEDULE
Annex A-1
MORTGAGE LOAN LOAN GROUP
LOAN NUMBER SELLER NUMBER LOAN / PROPERTY NAME
----------------------------------------------------------------------------------------
1 GSMC 1 One Liberty Plaza
2 GSMC 1 Scottsdale Xxxxxxx Xxxxxx
0 XXXX 0 Xxxx Xxxxxxxx (Note 6)
Xxxxxxxx 0
Xxxxxxxx 0
Xxxxxxxx 0
Xxxxxxxx 0
Xxxxxxxx 5
Building 6
Xxxxxxxx 0
Xxxxxxxx 0
Xxxxxxxx 0
Xxxxxxxx 00
Xxxxxxxx 19
Xxxxxxxx 00
Xxxxxxxx 00
Xxxxxxxx 00
Xxxxxxxx 00
Xxxxxxxx 00
10 GSMC 2 Copper Beech Townhomes II - Columbia
17 GSMC 1 Hilton Garden Inn
20 GSMC 1 Technology Park
23 GSMC 1 Libbey Distribution Building
29 GSMC 1 Plaza Tower
36 GSMC 1 US Bank Building
37 GSMC 1 Fairlane Green Phase II
43 GSMC 2 Copper Beech Townhomes II - Allendale
46 GSMC 1 Xxxxxxx Plaza
49 GSMC 0 Xxxxxxx Xxxxxx North
54 GSMC 1 Oaks Tower and Gardens
55 GSMC 1 The Forum at Cherry Creek
57 GSMC 1 Emergisoft Plaza
61 GSMC 0 Xxxxxx Xxxxxx
68 GSMC 1 Commonwealth Shopping Center
72 GSMC 1 North Mar Center
74 GSMC 1 Piedmont Park Medical Center
78 GSMC 1 Shoppes at Tanglewood
86 GSMC 1 National Market Center - Commons Retail Building
89 GSMC 1 000 Xxxxxxxxxx Xxxx
92 GSMC 0 Xxxxxxxxxx Xxxxx
94 GSMC 1 Willmar Shoppes Retail Center
LOAN NUMBER PROPERTY ADDRESS CITY STATE ZIP CODE COUNTY
---------------------------------------------------------------------------------------------------------------------
1 Xxx Xxxxxxx Xxxxx Xxx Xxxx XX 00000 New York
2 0000-0000 Xxxx Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Maricopa
6 Various Xxxxxxxx XX 00000 Kings
203, 233, 241, 000, 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
220, 000 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
219, 000, 00xx Xxxxxx and 000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 Kings
34, 68, 00, 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
00-00 00xx Xxxxxx and 000-000 0xx Xxxxxx Xxxxxxxx XX 00000 Kings
34, 68, 00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
33, 67, 00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
32, 68, 00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
21, 55, 00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
000 0xx Xxxxxx Xxxxxxxx XX 00000 Kings
148, 000 00xx Xxxxxx and 0000 0xx Xxxxxx Xxxxxxxx XX 00000 Kings
147, 000 00xx Xxxxxx and 0000 0xx Xxxxxx Xxxxxxxx XX 00000 Kings
00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
00 00xx Xxxxxx Xxxxxxxx XX 00000 Kings
0000 0xx Xxxxxx Xxxxxxxx XX 00000 Kings
10 0000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000 Richland
17 0000 Xxxx Xxxxx Xxxxx Xxxxxxx XX 00000 Fairfax
20 00 Xxxxxxxxx Xxxxx Xxxxx Xxxxxxxxxx XX 00000 Xxxxxxxxxx
23 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX 00000 Caddo
29 000 0xx Xxxxxx Xxxxxxxxx Xx. Xxxxxxxxxx XX 00000 Pinellas
36 422 & 000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 Spokane
37 0000 Xxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 Xxxxx
43 00000 00xx Xxxxxx Xxxxxxxxx XX 00000 Ottawa
46 0000 Xxxx Xxxxxx Xxxxxxxx XX 00000 Xxxxxxx
49 0000 Xxxx Xxxxx Xxxx Xxxxxxxxxxxxxx XX 00000 Hanover
54 1100, 1101 & 0000 Xxxxxx Xxxxx Xxxxxxxxx XX 00000 Davidson
55 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 Arapahoe
57 000 Xxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 Tarrant
61 4445 - 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000 Xxxx
68 0000 Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxxxxx XX 00000 Xxxxx
72 0000-0000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 Trumbull
74 197 & 000 Xxxxxxxx Xxxxxxxxx and 000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxx XX 00000 York
78 000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxx XX 00000 Pasquotank
86 00000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx XX 00000 Anoka
89 000 Xxxx Xxxxxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 Xxxxxxxxxx
92 000-000 Xxxx Xxxxxxxxxx Xxxxx Xxxxxx XX 00000 Xxxxxx
94 2319 & 0000 Xxxxx Xxxxx Xxxxxx Xxxxxxx XX 00000 Kandiyohi
CROSS
COLLATERALIZED MASTER
CUT-OFF DATE (MORTGAGE LOAN SERVICING FEE ARD LOAN
LOAN NUMBER PRINCIPAL BALANCE GROUP) MORTGAGE RATE RATE (YES/NO)? ARD ADDITIONAL INTEREST RATE AFTER ARD
---------------------------------------------------------------------------------------------------------------------------------
1 250,000,000.00 No 6.1390% 0.0300% No
2 225,000,000.00 No 5.6592% 0.0300% No
6 50,000,000.00 No 6.2800% 0.0300% No
10 36,936,000.00 No 6.2700% 0.0800% No
17 27,320,000.00 No 7.1200% 0.0800% No
20 21,350,000.00 No 6.3700% 0.0700% No
23 19,000,000.00 No 5.6900% 0.1100% No
29 15,300,000.00 No 6.4500% 0.0900% No
36 13,900,000.00 No 6.7500% 0.0800% No
37 13,700,000.00 No 6.7000% 0.0800% No
43 11,896,000.00 No 6.2700% 0.0800% No
46 10,700,000.00 No 6.6400% 0.0800% No
49 9,661,091.15 No 6.7100% 0.0800% No
54 8,100,000.00 No 6.3500% 0.0800% No
55 8,035,000.00 No 6.7300% 0.0800% No
57 7,760,000.00 No 6.5300% 0.1300% No
61 7,300,000.00 No 6.5600% 0.0800% No
68 6,650,000.00 No 6.6600% 0.0800% No
72 5,360,000.00 No 6.4700% 0.0800% No
74 5,300,000.00 No 6.3700% 0.0700% No
78 4,990,371.15 No 6.1900% 0.1300% No
86 4,032,218.75 No 6.6700% 0.1000% No
89 3,875,000.00 No 6.3900% 0.0800% No
92 3,550,000.00 No 6.6900% 0.1300% No
94 3,275,000.00 No 5.9700% 0.0800% No
INTEREST
RESERVE ORIGINAL TERM
MORTGAGE LOAN PERIODIC PAYMENT ON FIRST DUE TO MATURITY /
LOAN NUMBER (YES/NO)? LOAN TYPE GRACE PERIOD STATED MATURITY DATE DATE AFTER CLOSING ARD (MONTHS)
--------------------------------------------------------------------------------------------------------------------------------
1 No Partial IO/Balloon 0 (Note 1) 08/06/17 1,278,958.33 119
2 No Interest Only (Note 2) 07/06/13 1,061,100.00 72
6 No Interest Only (Note 2) 09/06/17 261,666.67 119
10 No Partial IO/Balloon 0 09/06/17 192,990.60 120
17 No Partial IO/Balloon 0 01/06/18 162,098.67 120
20 No Partial IO/Balloon 5 01/01/18 113,332.92 120
23 No Interest Only 0 07/06/17 90,091.67 120
29 No Partial IO/Balloon 5 02/01/18 82,237.50 120
36 No Partial IO/Balloon 0 09/06/17 78,187.50 120
37 No Partial IO/Balloon 5 (Note 4) 03/06/18 76,491.67 120
43 No Partial IO/Balloon 0 09/06/17 62,156.60 120
46 No Partial IO/Balloon 5 (Note 4) 11/06/17 59,206.67 120
49 No Balloon 0 11/06/17 62,656.33 120
54 No Partial IO/Balloon 0 09/06/17 42,862.50 120
55 No Partial IO/Balloon 0 12/06/17 45,062.96 120
57 No Interest Only 0 07/06/14 42,227.33 84
61 No Partial IO/Balloon 0 12/06/17 39,906.67 120
68 No Partial IO/Balloon 0 12/06/17 36,907.50 120
72 No Partial IO/Balloon 0 09/06/17 28,899.33 120
74 No Partial IO/Balloon 5 02/01/18 28,134.17 120
78 No Balloon 15 02/06/18 30,591.01 120
86 No Balloon 0 03/06/18 25,956.72 120
89 No Partial IO/Balloon 0 01/06/18 20,634.38 120
92 No Partial IO/Balloon 0 12/06/17 19,791.25 120
94 No Partial IO/Balloon 0 02/06/18 16,293.13 120
REMAINING TERM TO STATED ORIGINAL STATED REMAINING
MATURITY / ARD AMORTIZATION TERM AMORTIZATION TERM DEFEASANCE LOAN BORROWER'S PROPERTY PROPERTY SIZE
LOAN NUMBER (MONTHS) (MONTHS) (MONTHS) (YES/NO)? INTEREST SIZE TYPE
---------------------------------------------------------------------------------------------------------------------------
1 112 360 360 Yes Fee Simple 2,187,786 SF
2 63 Interest Only Interest Only Yes Fee Simple 1,320,041 SF
6 113 Interest Only Interest Only Yes Fee Simple 5,985,990 SF
Fee Simple 316,477 SF
Fee Simple 335,694 SF
Fee Simple 335,504 SF
Fee Simple 398,121 SF
Fee Simple 288,273 SF
Fee Simple 439,591 SF
Fee Simple 335,767 SF
Fee Simple 463,644 SF
Fee Simple 259,629 SF
Fee Simple 354,494 SF
Fee Simple 686,056 SF
Fee Simple 663,884 SF
Fee Simple 221,900 SF
Fee Simple 178,575 SF
Fee Simple 310,001 SF
Fee Simple 398,380 SF
10 113 360 360 Yes Fee Simple 278 Units
17 117 360 360 Yes Fee Simple 149 Rooms
20 117 360 360 Yes Fee Simple 272,366 SF
23 111 Interest Only Interest Only Yes Leasehold 646,000 SF
29 118 360 360 Yes Fee Simple 184,480 SF
36 113 360 360 Yes Fee Simple 182,380 SF
37 119 360 360 Yes Fee Simple 118,950 SF
43 113 360 360 Yes Fee Simple 82 Units
46 115 360 360 Yes Fee Simple 133,735 SF
49 115 360 355 Yes Fee Simple 73,440 SF
54 113 360 360 Yes Fee Simple 167,315 SF
55 116 360 360 No Fee Simple 83,178 SF
57 75 Interest Only Interest Only Yes (Note 5) Fee Simple 93,901 SF
61 116 360 360 Yes Fee Simple 30,613 SF
68 116 360 360 Yes Fee Simple 81,467 SF
72 113 360 360 Yes Fee Simple 62,192 SF
74 118 360 360 No Fee Simple 42,207 SF
78 118 360 358 Yes Fee Simple 34,300 SF
86 119 360 359 Yes Fee Simple 15,737 SF
89 117 360 360 Yes Fee Simple 9,773 SF
92 116 360 360 Yes Fee Simple 17,711 SF
94 118 360 360 Yes Fee Simple 35,564 SF
ESCROWED
REPLACEMENT ESCROWED TI/LC
ESCROWED RESERVES ESCROWED TI/LC RESERVES
REPLACEMENT CURRENT RESERVES CURRENT
ESCROWED ANNUAL ESCROWED ANNUAL RESERVES ANNUAL INITIAL ANNUAL
LOAN NUMBER LOCKBOX (YES/NO)? REAL ESTATE TAXES INSURANCE INITIAL DEPOSIT DEPOSIT DEPOSIT DEPOSIT
--------------------------------------------------------------------------------------------------------------------------------
1 Yes Yes Yes 0 0 0 0
2 Yes Yes Yes 0 0 0 0
6 Yes Yes Xx 0 0 0 0
00 Xx Yes Yes 6,950 83,400 NAP NAP
17 No Yes No 26,710 320,515 NAP NAP
20 No Yes Yes 2,270 27,237 12,917 155,000
23 Yes - Springing No No 0 0 0 0
29 No Yes Yes 2,400 28,803 6,833 81,996
36 No Yes Yes 2,777 33,321 0 0
37 No Yes Xx 0 0 0 0
00 Xx Yes Yes 2,050 24,600 NAP NAP
46 No Yes Yes 2,006 24,072 300,000 0
49 No Yes Yes 918 11,016 1,196 14,352
54 No Yes Yes 4,782 57,390 0 0
55 No Yes Yes 1,664 19,963 200,000 0
57 No Yes Yes 783 9,390 225,000 0
61 No Yes Yes 653 7,834 0 0
68 No Yes Yes 1,358 16,293 3,500 42,000
72 No Yes Yes 1,037 12,438 2,083 25,000
74 No Yes Yes 528 6,331 100,000 0
78 No Yes Yes 0 0 0 0
86 No Yes Yes 0 0 0 0
89 No Yes Yes 733 8,796 855 10,262
92 No Yes Yes 162 1,948 1,107 13,284
94 No Yes Yes 0 0 0 0
INITIAL
DEFERRED INITIAL
MAINTENANCE ENVIRONMENTAL
LOAN NUMBER DEPOSIT DEPOSIT HOLDBACK AMOUNT LOC ENVIRONMENTAL INSURANCE POLICY
-------------------------------------------------------------------------------------------------
1 0 0 No
2 0 0 No
6 0 0 No
10 0 0 No
17 32,750 0 No
20 0 0 Xx
00 0 0 Xx
00 0 000 Xx
36 0 0 No
37 0 0 No
43 0 0 No
46 8,078 0 No
49 0 0 500,000 No
54 94,806 0 No
55 0 0 No
57 0 0 No
61 10,000 0 No
68 87,681 0 No
72 0 0 No
74 0 0 No
78 0 0 No
86 0 0 56,000 No
89 18,125 0 Xx
00 0 0 Xx
00 0 0 Xx
