Exhibit 99.1
CWCapital Mortgage Loan Purchase Agreement
See attached
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of August
1, 2007 (the "Agreement"), between CWCapital Mortgage Securities I LLC
("CWCapital Securities I") and CWCapital Mortgage Securities VI LLC ("CWCapital
Securities VI" and, together with CWCapital Securities I, their successors and
permitted assigns hereunder, collectively, the "Seller"), CWCapital LLC, as an
additional party with respect to the mortgage loans identified on the schedule
annexed hereto as Exhibit A ("CWCapital" and, together with CWCapital Securities
I and CWCapital Securities VI, the "CWCapital Parties") and CWCapital Commercial
Funding Corp. (together with its successors and permitted assigns hereunder, the
"Purchaser"), the Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans, as identified on the schedule
annexed hereto as Exhibit A (the "Mortgage Loan Schedule") (collectively, the
"Mortgage Loans").
The Purchaser intends to deposit the Mortgage Loans, together with
other assets, into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates") to be identified as the CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 2007-C3, Commercial Mortgage
Pass-Through Certificates, Series 2007-C3. One or more "real estate mortgage
investment conduit" ("REMIC") elections will be made with respect to the Trust
Fund. The Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), to be dated as of August 1,
2007, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (the "Master Servicer"), CWCapital Asset Management LLC, as
special servicer (the "Special Servicer"), and Xxxxx Fargo Bank, N.A., as
trustee (the "Trustee"). Capitalized terms used but not defined herein have the
respective meanings set forth in the Pooling and Servicing Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of August 3, 2007, with Wachovia Capital
Markets, LLC ("Wachovia Securities") and Citigroup Global Markets Inc. ("CGMI"
and, together with Wachovia Securities, in such capacity, the "Underwriters"),
whereby the Purchaser will sell to the Underwriters all of the Certificates that
are to be registered under the Securities Act of 1933, as amended (the
"Securities Act"). The Purchaser has also entered into a Certificate Purchase
Agreement (the "Certificate Purchase Agreement"), dated as of August 3, 2007,
with Wachovia Securities and CGMI (collectively, in such capacity, the "Initial
Purchasers"), whereby the Purchaser will sell to the Initial Purchasers all of
the remaining Certificates (other than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Initial Purchasers have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of August
3, 2007.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $562,527,524.65 (the
"CWCapital Mortgage Loan Balance") as of the close of business on, with respect
to each Mortgage Loan, its Due Date in August 2007 (each such date, the
applicable "Cut-off Date"), after giving effect to any and all payments of
principal due thereon on or before such date, whether or not received. The
purchase and sale of the Mortgage Loans shall take place on August 17, 2007, or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). Adequate consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds (or by such other
method as shall be mutually acceptable to the parties hereto) on the Closing
Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, subject to the
rights of the holders of any related Companion Loans as specified in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby assumes such
Mortgage Loans, together with the rights and obligations related to such
Mortgage Loans as specified in the related Co-Lender Agreement. The Mortgage
Loan Schedule, as it may be amended, shall conform to the requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights of
the holders of any related Companion Loans, as applicable, be entitled to
receive all scheduled payments of principal and interest due after the Cut-off
Date, and all other recoveries of principal and interest collected after the
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of principal
and interest due on or before the Cut-off Date for each Mortgage Loan, but
collected after such date, shall, subject to the rights of the holders of any
related Companion Loans, as applicable, belong to, and be promptly remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit, or cause to be delivered and
deposited, with the Trustee a Mortgage File for each Mortgage Loan in accordance
with the terms of, and conforming to the requirements set forth in, the Pooling
and Servicing Agreement; provided that, with respect to any Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by delivery of the
original Mortgage Note (and all intervening endorsements) related to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered under the
applicable Lead PSA. If the Seller cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of delay caused by the public recording office where such document or instrument
has been delivered for recordation, the Seller shall deliver to the Trustee a
copy of the original, certified by the Seller to be a true and complete copy of
the original thereof submitted for recording. Concurrently with such delivery,
the Seller shall deliver, or cause to be delivered, to the Master Servicer and
the Special Servicer copies of the Mortgage Note, Mortgage(s) and any reserve
and cash management agreements with respect to each Mortgage Loan for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan for which a Mortgage File is required to
be delivered to the Trustee, the Seller shall bear the reasonable out-of-pocket
costs and expenses related to recording or filing, as the case may be, in the
appropriate public office for real property records or Uniform Commercial Code
financing statements, as appropriate, each related assignment of Mortgage and
assignment of Assignment of Leases, in favor of the Trustee referred to in
clause (a)(iv) of the definition of "Mortgage File" and each related UCC-2 and
UCC-3 assignment referred to in clause (a)(viii) of the definition of "Mortgage
File." If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, then the Seller shall
prepare a substitute therefor or cure such defect or cause such to be done, as
the case may be, and the Seller shall deliver such substitute or corrected
document or instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to the Pooling and Servicing Agreement, to the then holder of
such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all documents
and records that (i) relate to the servicing and administration of the Serviced
Loans, (ii) are reasonably necessary for the ongoing administration and/or
servicing of the Serviced Loans and (iii) are in possession or control of the
Seller, together with (x) all unapplied Escrow Payments and Reserve Funds in the
possession or under control of the Seller that relate to the Serviced Loans and
(y) a statement indicating which Escrow Payments and Reserve Funds are allocable
to such Serviced Loans), provided that the Seller shall not be required to
deliver any draft documents, privileged or other internal communications, credit
underwriting, due diligence analyses or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Seller shall provide, or cause to be provided, information
necessary for the Master Servicer to produce the initial data with respect to
each Mortgage Loan for the CMSA Financial File and the CMSA Loan Periodic Update
File that are required to be prepared by the Master Servicer pursuant to the
Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) each of the CWCapital Parties hereby represents and warrants to
and covenants with the Purchaser, as of the date hereof, that:
(i) (A) CWCapital is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of
Massachusetts and (B) CWCapital Securities I and CWCapital Securities VI
are each a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Delaware, are duly
qualified as foreign organizations in good standing in all jurisdictions
to the extent such qualification is necessary to hold and sell the
Mortgage Loans or otherwise comply with its obligations under this
Agreement, except where the failure to be so qualified would not have a
material adverse effect on their ability to perform their obligations
hereunder, and possess all requisite authority and power to carry on their
business as currently conducted by it and to execute, deliver and comply
with their obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by each of the CWCapital Parties and, assuming due
authorization, execution and delivery hereof by the Purchaser, constitutes
a legal, valid and binding obligation of each of the CWCapital Parties,
enforceable against each of the CWCapital Parties in accordance with its
terms, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by each of the
CWCapital Parties' and the CWCapital Parties' performance and compliance
with the terms of this Agreement will not (A) violate each of the
CWCapital Parties' organizational documents, (B) violate any law or
regulation or any administrative decree or order to which the CWCapital
Parties are subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the CWCapital Parties are a party or by which the
CWCapital Parties are bound.
(iv) Each of the CWCapital Parties are not in default with respect
to any order or decree of any court or any order, regulation or demand of
any federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the CWCapital Parties'
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the CWCapital Parties or
their properties or have consequences that would, in each of the CWCapital
Parties' reasonable and good faith judgment, materially and adversely
affect its performance hereunder.
(v) Each of the CWCapital Parties' are not a party to or bound by
any agreement or instrument or subject to any organizational document or
any other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the CWCapital Parties' reasonable
and good faith judgment, materially and adversely affect the ability of
each of the CWCapital Parties to perform its obligations under this
Agreement or that requires the consent of any third person to the
execution and delivery of this Agreement by the CWCapital Parties or the
performance by the CWCapital Parties of their obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization or order
of, registration or filing with, or notice to, any court or governmental
agency or body, is required for the execution, delivery and performance by
each of the CWCapital Parties of or compliance by the CWCapital Parties'
with this Agreement or the consummation of the transactions contemplated
by this Agreement; and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the CWCapital
Parties' knowledge, threatened against any of the CWCapital Parties that
would, in the CWCapital Parties' good faith and reasonable judgment,
prohibit its entering into this Agreement or materially and adversely
affect the performance by the CWCapital Parties of their obligations under
this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage
Loans to the Purchaser as a sale for accounting and tax purposes. In
connection with the foregoing, the Seller shall cause all of its records
to reflect such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage Loans
to the Purchaser will constitute at least reasonably equivalent value and
fair consideration for the Mortgage Loans. The Seller will be solvent at
all relevant times prior to, and will not be rendered insolvent by, the
sale of the Mortgage Loans to the Purchaser. The Seller is not selling the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially
all of the assets of the Seller. The Seller does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(b) The CWCapital Parties hereby make, for the benefit of the
Purchaser, with respect to each Mortgage Loan, as of the Closing Date or as of
such other date expressly set forth therein, each of the representations and
warranties set forth on Exhibit B attached hereto, except as otherwise set forth
on Exhibit C attached hereto.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the CWCapital Parties as of the date
hereof that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the CWCapital Parties, constitutes a legal, valid
and binding obligation of the Purchaser, enforceable against the Purchaser
in accordance with its terms, except as such enforcement may be limited by
(A) bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
(vi) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution,
delivery or performance of this Agreement by the Purchaser, results or
will result in the creation or imposition of any lien on any of the
Purchaser's assets or property, or conflicts or will conflict with,
results or will result in a breach of, or requires or will require the
consent of any third person or constitutes or will constitute a default
under (A) any term or provision of the Purchaser's certificate of
incorporation or bylaws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Purchaser is a
party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree or any court or
governmental authority having jurisdiction over the Purchaser or its
assets.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If any of the CWCapital Parties discovers or receives notice in
accordance with Section 10 hereof of a Document Defect or a breach of any of its
representations and warranties made pursuant to Section 3(b) hereof (each such
breach, a "Breach") relating to any Mortgage Loan, and such Document Defect or
Breach materially and adversely affects the value of the Mortgage Loan or the
related Mortgaged Property or the interests of the Purchaser in such Mortgage
Loan (in which case any such Document Defect or Breach would be a "Material
Document Defect" or a "Material Breach," as the case may be), then (subject to
Section 5(b)) the Seller shall, within 90 days after its discovery or receipt of
such notice of such Material Document Defect or Material Breach (or, in the case
of a Material Document Defect or Material Breach that affects whether a Mortgage
Loan was, as of the Closing Date, is or will continue to be a "qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified Mortgage"),
not later than 90 days after any party discovering such Material Document Defect
or Material Breach) (such 90-day period, in either case, the "Initial Resolution
Period"), (i) cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, which cure shall include payment of any
Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or the related Mortgaged Property, or in the case of any
Mortgaged Property related to a Loan Group, to the extent of the Seller's
interest therein) from, and in accordance with the directions of, the Purchaser
or its designee, at a price equal to the Purchase Price; provided that if (A)
any such Material Breach or Material Document Defect, as the case may be, does
not affect whether the Mortgage Loan was, as of the Closing Date, is or will
continue to be a Qualified Mortgage, (B) such Material Breach or Material
Document Defect, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (C) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period and
(D) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the applicable Initial Resolution Period, then the Seller
shall have such additional 90-day period (the "Resolution Extension Period") to
complete such cure or, failing such, to repurchase the affected Mortgage Loan
(or the related Mortgaged Property) unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is, at the end of the Initial Resolution
Period, then a Specially Serviced Mortgage Loan and a Servicing Transfer Event
has occurred as a result of a monetary default or as described in clause (e),
clause (f) or clause (g) of the definition of "Specially Serviced Mortgage Loan"
in the Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to Seller by the Trustee pursuant to
Section 2.02 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect; and provided,
further, that, if any such Material Document Defect is still not cured after the
initial 90-day period and any such additional 90-day period solely due to the
failure of the Seller to have received the recorded document, then the Seller
shall be entitled to continue to defer its cure and repurchase obligations in
respect of such Document Defect so long as the Seller certifies to the Purchaser
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Any such repurchase of a
Mortgage Loan shall be on a whole loan, servicing released basis. The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Breach or Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Provided that the Master Servicer has notice of such Material
Document Defect or Material Breach, the Master Servicer shall notify the Seller
if the related Mortgage Loan becomes a Specially Serviced Mortgage Loan during
any applicable cure periods. Any of the following document defects shall be
conclusively presumed to be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, together with the
endorsements referred to in clause (a)(i) of the definition of "Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and indemnity
with respect to the missing Mortgage Note and any missing endorsement that
appears to be regular on its face, (b) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of the original executed Mortgage
or a copy of such Mortgage certified by the local authority with which the
Mortgage was recorded, in each case with evidence of recording thereon, that
appears to be regular on its face, unless there is included in the Mortgage File
a copy of the executed Mortgage and a certificate stating that the original
signed Mortgage was sent for recordation, (c) other than with respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the original or a
copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (d) other
than with respect to a Non-Serviced Trust Loan, the absence from the Mortgage
File of any intervening assignments required to create a complete chain of
assignment to the Trustee on behalf of the Trust and a certificate stating that
the original intervening assignments were sent for recordation, unless there is
included in the Mortgage File a certified copy of the intervening assignment,
(e) the absence from the Mortgage File of a copy of the ground lease with
respect to any leasehold mortgages or (f) other than with respect to a
Non-Serviced Trust Loan, the absence from the Servicing File of any original
letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties, and (z) the
applicable Material Breach of Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall use reasonable
efforts, subject to the terms of the related Mortgage Loans, to prepare and, to
the extent necessary and appropriate, have executed by the related Mortgagor and
record, such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loans in such Cross-Collateralized Group that are to be repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination or release will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) a written confirmation from
each Rating Agency that such termination or release will not cause an Adverse
Rating Event to occur with respect to any Class of Certificates, (ii) the debt
service coverage ratio for the four preceding calendar quarters for all of the
Mortgage Loans relating to such Cross-Collateralized Group remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder (if one is
acting) has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
Seller within 10 Business Days of the Directing Holder's receipt of a written
request for such consent); and provided, further, that the Seller may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage Loan in lieu
of terminating the cross-collateralization or a release of the affected
Mortgaged Properties from the cross-collateralization of the Mortgage Loan. In
the event that the cross-collateralization of any Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan secured by a
portfolio of Mortgaged Properties is released pursuant to this paragraph, the
Seller may elect either to repurchase only the affected Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All reasonable
costs and expenses incurred by the Purchaser or its designee pursuant to this
paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have executed and
delivered such instruments of endorsement, transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall deliver to the
Seller all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller any escrow
payments or reserve funds held by it, or on its behalf, in respect of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or other
liquidation pursuant to, and in accordance with, the Pooling and Servicing
Agreement shall not constitute a defense to any repurchase claim disputed by the
Seller nor shall such modification change the Purchase Price due from the Seller
for any repurchase claim. In the event of any such modification, the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the Seller is
required to or elects to repurchase such Mortgage Loan in accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or foreclosure
upon such Mortgage Loan and sale of the successor REO Property, shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the Seller and (ii) representation or warranty of any kind (either expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or successor REO
Property, which claim shall be made in accordance with this Section 5. If a
court of competent jurisdiction issues a final order that the Seller is or was
obligated to repurchase the related Mortgage Loan or the successor REO Loan or
the Seller otherwise accepts liability, then, after the expiration of any
applicable appeal period, but in no event later than the termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing Agreement, the
Seller will be obligated to pay to the Trust the difference between (i) any
Liquidation Proceeds received upon such liquidation net of Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in such action
shall be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the Seller
set forth in Section 5(a) to cure any Material Breach or Material Document
Defect or to repurchase such Mortgage Loan constitute the sole remedies
available to the Purchaser with respect to any Breach or Document Defect,
provided that for purposes of the remedies set forth in this Section 5, the sole
recourse with respect Mortgage Loans shall be against CWCapital.
(g) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph 38 of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear reasonable costs and expenses associated with a defeasance, as
set forth in paragraph 38 (any such fees, costs or expenses, referred to herein
as "Covered Costs"), then the Purchaser or its designee will direct the Seller
in writing to wire transfer to the Custodial Account, within 90 days of receipt
of such direction, the amount of any such reasonable costs and expenses incurred
by the Trust that (i) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided that
such payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Serviced Companion Loan that is deposited into another
securitization, the depositor of such securitization) and the Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next the Purchaser's name on Exhibit P and Exhibit Q of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the CWCapital
Parties set forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement, and all of the representations and warranties of the Purchaser set
forth in Section 4 of this Agreement, shall be true and correct in all material
respects as of the Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the CWCapital Parties shall have the ability to comply
with all terms and conditions and perform all duties and obligations required to
be complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the CWCapital
Parties;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) A Certificate of CWCapital, executed by a duly authorized
officer of CWCapital and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that
CWCapital has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part that are required under this Agreement
to be performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of CWCapital, dated the
Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that each individual who, as an officer or
representative of CWCapital, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents or certificates are their genuine signatures, or
such other statement relating to incumbency that is acceptable to the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the applicable CWCapital Party,
true and correct copies of (i) the organizational documents of each CWCapital
Party and (ii) certificates of good standing of (A) CWCapital Securities I and
CWCapital Securities VI each issued by the Secretary of State of the State of
Delaware and (B) CWCapital issued by the Secretary of State of the State of
Massachusetts, each as of a recent date;
(g) A favorable opinion of counsel to CWCapital, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement, together
with such other opinions of such counsel as may be required by the Rating
Agencies in connection with the transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to CWCapital, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement;
(i) A letter of counsel of CWCapital, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to the
Underwriters, to the effect that nothing has come to such counsel's attention
that would lead such counsel to believe that the Prospectus Supplement as of the
date thereof or as of the Closing Date contains, with respect to CWCapital or
the Mortgage Loans, any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein relating to
CWCapital or the Mortgage Loans, in the light of the circumstances under which
they were made, not misleading; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. The reasonable out-of-pocket costs and expenses
incurred by the Seller, each other mortgage loan seller, the Purchaser, the
Underwriters and the Initial Purchasers in connection with the securitization of
the Mortgage Loans and the other transactions contemplated by this Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement shall be
payable as set forth in a separate writing among such parties on the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto agree
that it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the CWCapital Parties submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Trustee) until the termination of the Pooling and Servicing Agreement pursuant
to the terms thereof.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the CWCapital Parties under this Agreement shall not be assigned by the
CWCapital Parties without the prior written consent of the Purchaser, except
that any person into which one of the CWCapital Parties may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which one of the CWCapital Parties is a party, or any person
succeeding to all or substantially all of the business of the CWCapital Parties,
shall be the successor one of the CWCapital Parties hereunder. The Purchaser has
the right to assign its interest under this Agreement, in whole or in part, as
may be required to effect the purposes of the Pooling and Servicing Agreement,
and the assignee shall, to the extent of such assignment, succeed to the rights
and obligations hereunder of the Purchaser. Subject to the foregoing, this
Agreement shall bind and inure to the benefit of and be enforceable by the
CWCapital Parties, the Purchaser, and their respective successors and permitted
assigns.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The CWCapital Parties' obligations
hereunder shall in no way be expanded, changed or otherwise affected by any
amendment of or modification to the Pooling and Servicing Agreement, unless the
CWCapital Parties have consented to such amendment or modification in writing.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
ADDITIONAL PARTY
CWCAPITAL LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
SELLER
CWCAPITAL MORTGAGE SECURITIES I LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
CWCAPITAL MORTGAGE SECURITIES VI LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
PURCHASER
CWCAPITAL COMMERCIAL FUNDING CORP.
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Managing Director
SCHEDULE A
Notices
Additional Party:
-----------------
Address for Notices:
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx
Seller:
-------
0000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx
Purchaser:
----------
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
EXHIBIT A
Mortgage Loan Schedule
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
EXHIBIT A
CWCAPITAL
Mortgage
Loan Number Property Name Address
----------- ----------------------------------------- ---------------------------------------------
7 Tradewinds Hospitality Portfolio Various
7.01 Tradewinds Island Grand Resort 0000 Xxxx Xxxxxxxxx
7.02 Tradewinds Breckenridge Resort 0000 Xxxx Xxxxxxxxx
7.03 Tradewinds Sandpiper Resort 0000 Xxxx Xxxxxxxxx
17 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx 0000 Xxxxxxxxx Xxxxxx & 000 Xxxx Xxxxxx
18 Vinings Corner Apartments 2101 Paces Ferry Road
20 Mission Gate 0000 Xxxx Xxxxx
25 Preferred Freezer - Philadelphia, PA 0000 Xxxxx 0xx Xxxxxx
28 The Xxxxx of North Bend 000-X Xxxxx xx Xxxxx Xxxx Xxxxx
31 One Deerwood Center 00000 Xxxxxxxxx Xxxxxxx North
35 Xxxxxxx Technologies Buildings Portfolio Various
35.01 000 Xxxxxxxx Xxxxxxxxx 000 Xxxxxxxx Xxxxxxxxx
35.02 515 Xxxxx Xxxxx Court 515 Xxxxx Xxxxx Court
39 0000 Xxxxxxxxxx Xxxxxx, XX 0000 Xxxxxxxxxx Xxxxxx, XX
40 Xxxxxxxx Apartments 000 Xxxx Xxxxxx XX
42 Xxxxxxxx Reserve Apartments 0000 Xxxxxxx Xxxxxxxx Xxxxx
43 Greens Crossroads 000-000 Xxxxxx Xxxx
44 321 Xxxxxxxxx Center Drive 321 Xxxxxxxxx Center Drive
45 Shadowridge Apartments 0000 Xxxxxxx Xxxxxx
46 Illinois Student Housing Portfolio Various
46.01 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx
46.02 000 Xxxx Xxxxxxx Xxxxxx 000 Xxxx Xxxxxxx Xxxxxx
46.03 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
46.04 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
46.05 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Street
49 Dorado Heights Apartments 00000 Xxxxxxxxxx Xxxxxxxxx XX
50 Cherry Hill Theatres 0000 Xxxxx 00
56 PRC Building 00000 Xxxxx Xxxxx Xxxxxxx
58 Xxxxxx'x Mill 15603 Gulf Freeway
00 Xxxx Xxxx Xxxxxx Xxxxxx 0000-0000 Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Shopping Center Xxxx 00xx Xxxxxx xxx Xxxxx Xxxxxxxx Xxxxx
68 Staverton West 21441 Pacific Xxxxxxxxx
00 Xxxxxxx Xxxxxx Xxxxx 23920-23930 Westhemier Parkway
00 Xxxxxxxxxxxx Xxxxxxx & Xxxxxxxxxxxx Xxxxx 0000, 7706 & 0000 Xxxxxxxxxxxx Xxxx
71 Landmark Apartments 0000 Xxxxxx Xxxxxx Xxxx XX
74 Sweet Ovations Plant 00000 Xxxxx Xxxxxxxxx Xxxxxx
77 Xxxxxxx Town Center 2330 Xxxxxxx Home Road
78 Guam Medical Plaza 633 Governor Xxxxxx Xxxxxxx Xxxx
00 Air & Space Self Storage 00000 Xxx Xxxx
00 Xxxxxxxx Xxxxxx Xxxxxxx 00 Xxxx Xxxx Street
84 San Marin Apartments - El Paso, TX 1450 Xxxxxx Xxxxxx Drive
86 Tanglewood Apartments 0000 00xx Xxxxxx Xxxxx
87 0000 00xx Xxxxxx XX 0000 00xx Xxxxxx XX
00 Xxxxxxxxx - Xxxxxxxx, XX 0000 Xxxxxxx Xxxxxx
90 The Hallmark Building 695 Eddy Street
91 Rite Aid - Bronx, NY 000 Xxxxx Xxxx Xxxxxx
93 Xxxxxx Xxxxx 0000 XX 000xx Xxxxxx
00 Xxxxx Xxxxx Townhomes 0000 Xxxxx Xxxxx Xxxxx
95 The Northcrest Apartments 0000 XX Xxxxxxx Xxxxx
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX 3948 Xxxxx 000
00 Xxxxxxx Xxxxx Xxxxxxxxxx 0000 Justice Way
99 Walgreens - Camilus, NY 0000 Xxxx Xxxxxxxx Xxxxxx
101 0000 Xxxxxxxxx Xxxxxx, XX 0000 Xxxxxxxxx Xxxxxx, XX
103 Your Extra Attic - Marietta, GA 0000 Xxxxx Xxxxxxx Xxxx
104 Highland Oaks Apartments 0000-0000 Xxxxxxx Xxxx
000 Xxxxx Xxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxxx
107 Rite Aid - West Goshen, PA 1301 Phoenixville Pike
108 Harley Retail Shops 0000 Xxxxxxx Xxxx XX
109 The Greenway/Xxxxxxx'x Landing Apartments 0000 Xxxxxxxx Xxxxx & 000 Xxxx 00xx Xxxxxx
110 Foundations Bank & Executive Center N35 W23877 Highfield Court
000 Xxxxx Xxxxxx Xxxxxx 00000-00000 Xxxxx Xxxxx Street
000 Xxxxxxxxx Xxxxx I & II 730-785 4th Street North
113 Prairie Lakes Shopping Center 00000 Xxxxx Xxxxx
000 Xxxxxxxxx Xxxxxxx & Villas 000 Xxxxxx Xxxxx & 0000 Xxxx Xxxxxxxxx Xxxxxx
000 00xx Xxxxxx Xxxxx 000 Xxxx 00xx Street
116 106 South Xxxxxxx and 000 Xxxx Xxxxxxxxx 000 Xxxxx Xxxxxxx and 000 Xxxx Xxxxxxxxx
000 Xxxxx Xxxxx 0000 00xx Xxxxxx XX
000 XXX Xxxxx 0000 Xxxxx Xxxxx Xxxx
119 36 Middlesex Turnpike 00 Xxxxxxxxx Xxxxxxxx
120 The Xxxxxxxx Campus Inn 000 Xxxxxxx Xxxxxx
122 Maplewood Marketplace 0000 Xxxxxx Xxxx X X
000 Xxxxx Office Building 0000 XX 00xx Xxxxxx
Remaining Term
Mortgage Cut-Off Date Monthly P&I to Maturity
Loan Number City State Zip Code Loan Balance ($) Payments ($) Mortgage Rate or ARD (Mos.)
----------- ----------------------- ----- ------------- ---------------- ------------ ------------- --------------
0 Xx. Xxxx Xxxxx XX 00000 50,000,000 IO 5.7280% 00
0.00 Xx. Xxxx Xxxxx XX 00000
7.02 Xx. Xxxx Xxxxx XX 00000
7.03 Xx. Xxxx Xxxxx XX 00000
00 Xx Xxxxxxx XX 00000 28,416,993 161,857 5.5100% 118
18 Xxxxxx XX 00000 27,580,000 IO 5.8550% 00
00 Xxxxx XX 00000 26,400,000 IO 5.8750% 57
25 Xxxxxxxxxxxx XX 00000 22,300,000 IO 5.7700% 116
28 Xxxxxxx XX 00000 21,200,000 IO 5.5710% 000
00 Xxxxxxxxxxxx XX 00000 19,000,000 IO 5.6730% 000
00 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000 16,300,000 98,546 6.0780% 118
35.01 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000
35.02 Xxxx Xxxxxxxxx Xxxxxxxx XX 00000
39 Xxxxxxxxxx XX 00000 14,660,000 91,862 6.4170% 000
00 Xxxxxxxxxxx XX 00000 14,640,000 IO 5.7150% 000
00 Xxxxxxxx XX 00000 13,800,000 IO 5.8350% 00
00 Xxxxxxx XX 00000 13,000,000 76,278 5.8000% 57
44 Xxxxxxxxx XX 00000 12,520,000 71,748 5.5840% 117
45 Xxxxxxxxxxx XX 00000 12,150,000 IO 5.6460% 116
46 Various IL Various 12,000,000 70,365 5.7940% 117
46.01 Xxxxxxxxx XX 00000
46.02 Xxxxxxxxx XX 00000
46.03 Xxxxxx XX 00000
46.04 Xxxxxx XX 00000
46.05 Xxxxxx XX 00000
49 Xxxxxxxxxxx XX 00000 11,400,000 IO 5.7170% 117
50 Xxxxxx Xxxx XX 00000 11,000,000 63,315 5.6240% 000
00 Xxxxxx Xxx XX 00000 9,900,000 IO 5.7460% 000
00 Xxxxxxx XX 00000 9,700,000 IO 6.1813% 00
00 Xxxxx Xxxxxxx XX 00000 8,705,000 IO 5.7000% 000
00 Xxxxx XX 00000 8,600,000 53,855 6.4110% 000
00 Xxxxxxxx XX 00000 8,400,000 IO 5.6560% 59
69 Xxxx XX 00000 8,250,000 46,749 5.4820% 000
00 Xxxx Xxxxxx XX 00000 8,000,000 46,164 5.6470% 000
00 Xxxxxxxxxxx XX 00000 7,878,000 IO 5.7170% 000
00 Xxxxxxx XX 00000 7,600,000 47,862 6.4650% 119
77 Xxxxxxx XX 00000 7,160,000 IO 5.8960% 000
00 Xxxxxxxx XX 00000 6,987,256 42,068 6.0220% 000
00 Xxxxxxxxx XX 00000 6,800,000 39,037 5.6000% 000
00 Xxxxxxx XX 00000 6,780,833 39,735 5.7620% 000
00 Xx Xxxx XX 00000 6,250,000 35,561 5.5190% 000
00 Xx. Xxxxxxxxxx XX 00000 5,858,565 34,453 5.7950% 000
00 Xxxxxxx Xxxxxxxx XX 00000 5,825,651 36,980 5.8000% 117
89 Xxxxxxxx XX 00000 5,632,000 32,506 5.6490% 000
00 Xxxxxxxxxx XX 00000 5,600,000 32,623 5.7340% 000
00 Xxxxx XX 00000 5,464,344 34,016 6.3380% 118
93 Xxxxx XX 00000 5,187,600 32,818 5.8080% 000
00 Xxxxxxxxx XX 00000 5,140,000 32,647 6.5470% 000
00 Xxxxxxxxx XX 00000 5,000,000 32,833 6.8710% 119
96 Xxxxxxxxxxxxx XX 00000 4,864,000 28,074 5.6490% 000
00 Xxxxxxx XX 00000 4,791,281 28,877 6.0320% 118
99 Xxxxxxx XX 00000 4,480,000 25,857 5.6490% 000
000 Xxxxxxxxxx XX 00000 4,400,000 IO 6.0120% 000
000 Xxxxxxxx XX 00000 4,250,000 24,759 5.7340% 000
000 Xxxxxxxxxxx XX 00000 4,200,000 IO 5.6470% 000
000 Xxxxxxxx XX 00000 3,934,857 23,207 5.8120% 000
000 Xxxx Xxxxxx Xxxxxxxx XX 00000 3,825,000 22,619 5.8720% 000
000 Xxxxx Xxxxxx Xxxxxxxx XX 00000 3,700,000 21,828 5.8500% 000
000 Xxxxxx XX 00000 3,573,243 21,143 5.8600% 000
000 Xxxxxxxx XX 00000 3,511,884 20,492 5.7410% 000
000 Xxxxx XX 00000 3,500,000 20,456 5.7640% 000
000 Xx. Xxxxxxxxxx XX 00000 3,470,000 19,818 5.5530% 000
000 Xxxxxxxxxxx XX 00000 3,250,000 19,032 5.7820% 000
000 Xxxxxxxxxxx XX 00000 3,150,000 18,211 5.6640% 000
000 Xxxxxx Xxxx XX 00000 3,111,022 18,053 5.6720% 000
000 Xxxxxx / Xxxxxxxxx XX 00000 / 61820 3,065,000 IO 5.5040% 000
000 Xxxxxxxxxx XX 00000 3,000,000 17,689 5.8450% 117
118 Xxxxxx XX 00000 2,950,000 17,197 5.7400% 117
119 Xxxxxxx XX 00000 2,800,000 IO 6.1850% 000
000 Xxxxxxx XX 00000 2,692,884 16,275 6.0500% 000
000 Xxxxxxxxx XX 00000 2,645,111 15,823 5.9620% 000
000 Xxxxx XX 00000 2,277,000 13,663 6.0080% 118
Remaining Amort Term Interest Loan
Mortgage Maturity Date (Mos.) for Balloon Accrual Administrative Master Servicing
Loan Number or ARD Mortgage Loan Method Cost Rate Fee Rate Ground Lease
----------- ------------- -------------------- ---------- -------------- ---------------- ------------
7 07/01/14 IO Actual/360 0.0310% 0.0300% Y
7.01 N
7.02 N
7.03 Y
17 06/01/17 358 Actual/360 0.0310% 0.0300% N
18 05/01/12 IO Actual/360 0.0310% 0.0300% N
20 05/01/12 IO Actual/360 0.0310% 0.0300% N
25 04/01/17 IO Actual/360 0.0310% 0.0300% N
28 06/01/17 IO Actual/360 0.0310% 0.0300% N
31 05/01/17 IO Actual/360 0.0310% 0.0300% N
35 06/01/17 360 Actual/360 0.0310% 0.0300% N
35.01 N
35.02 N
39 07/01/17 360 Actual/360 0.0310% 0.0300% N
40 05/01/17 IO Actual/360 0.0310% 0.0300% N
42 05/01/12 IO Actual/360 0.0310% 0.0300% N
43 05/01/12 360 Actual/360 0.0310% 0.0300% N
44 05/01/17 360 Actual/360 0.0310% 0.0300% N
45 04/01/17 IO Actual/360 0.0310% 0.0300% N
46 05/01/17 360 Actual/360 0.0310% 0.0300% N
46.01 N
46.02 N
46.03 N
46.04 N
46.05 N
49 05/01/17 IO Actual/360 0.0310% 0.0300% N
50 06/01/17 360 Actual/360 0.0310% 0.0300% N
56 06/01/17 IO Actual/360 0.0310% 0.0300% N
58 06/01/12 IO Actual/360 0.0310% 0.0300% N
66 06/01/17 IO Actual/360 0.0310% 0.0300% N
67 08/01/17 360 Actual/360 0.0310% 0.0300% Y
68 07/01/12 IO Actual/360 0.0310% 0.0300% N
69 05/01/17 360 Actual/360 0.0310% 0.0300% N
70 04/01/17 360 Actual/360 0.0310% 0.0300% N
71 05/01/17 IO Actual/360 0.0310% 0.0300% N
74 07/01/17 360 Actual/360 0.0310% 0.0300% N
77 08/01/17 IO Actual/360 0.0310% 0.0300% N
78 06/01/17 358 Actual/360 0.0310% 0.0300% N
80 05/01/17 360 Actual/360 0.0310% 0.0300% N
81 05/01/17 357 Actual/360 0.0510% 0.0500% N
84 05/01/17 360 Actual/360 0.0810% 0.0800% N
86 05/01/17 357 Actual/360 0.0310% 0.0300% N
87 05/01/17 297 Actual/360 0.0810% 0.0800% N
89 05/01/17 360 Actual/360 0.0310% 0.0300% N
90 07/01/17 360 Actual/360 0.0310% 0.0300% N
91 06/01/17 358 Actual/360 0.0310% 0.0300% Y
93 07/01/17 300 Actual/360 0.0310% 0.0300% Y
94 08/01/17 360 Actual/360 0.0810% 0.0800% N
95 07/01/17 360 Actual/360 0.0810% 0.0800% N
96 05/01/17 360 Actual/360 0.0310% 0.0300% N
98 06/01/17 358 Actual/360 0.0310% 0.0300% N
99 05/01/17 360 Actual/360 0.0310% 0.0300% N
101 07/01/17 IO Actual/360 0.0310% 0.0300% N
103 05/01/17 360 Actual/360 0.0310% 0.0300% N
104 04/01/17 IO Actual/360 0.0310% 0.0300% N
105 04/01/17 356 Actual/360 0.0310% 0.0300% N
107 05/01/17 360 Actual/360 0.0310% 0.0300% N
108 05/01/17 360 Actual/360 0.0810% 0.0800% N
109 06/01/17 358 Actual/360 0.0310% 0.0300% N
110 07/01/17 359 Actual/360 0.0310% 0.0300% N
111 07/01/17 360 Actual/360 0.0310% 0.0300% N
112 05/01/17 360 Actual/360 0.0310% 0.0300% N
113 06/01/17 360 Actual/360 0.0310% 0.0300% N
114 06/01/17 360 Actual/360 0.0310% 0.0300% N
115 05/01/17 357 Actual/360 0.0310% 0.0300% N
116 05/01/17 IO Actual/360 0.0310% 0.0300% N
117 05/01/17 360 Actual/360 0.0310% 0.0300% N
118 05/01/17 360 Actual/360 0.0310% 0.0300% N
119 08/01/17 IO Actual/360 0.0310% 0.0300% N
120 05/01/17 357 Actual/360 0.0310% 0.0300% N
122 06/01/17 358 Actual/360 0.1110% 0.1100% N
123 06/01/17 360 Actual/360 0.0310% 0.0300% N
Cross Collateralized
Mortgage and Cross Defaulted Letter of Credit
Loan Number Mortgage Loan Seller Originator Defeasance Loan Loan Flag In-Place ARD Loan
----------- -------------------- ---------- --------------- -------------------- ---------------- --------
7 CWCapital CWCapital Y N N N
7.01 CWCapital CWCapital
7.02 CWCapital CWCapital
7.03 CWCapital CWCapital
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx N N N N
20 CWCapital CWCapital N N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N Y
35.01 CWCapital CWCapital
35.02 CWCapital CWCapital
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
42 CWCapital CWCapital N N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
46.01 CWCapital CWCapital
46.02 CWCapital CWCapital
46.03 CWCapital CWCapital
46.04 CWCapital CWCapital
46.05 XXXxxxxxx XXXxxxxxx
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N Y
58 CWCapital CWCapital Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N Y
70 CWCapital CWCapital Y N N N
71 CWCapital CWCapital Y N N N
74 CWCapital CWCapital N N N Y
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
84 CWCapital CWCapital Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
89 CWCapital CWCapital N N N Y
90 CWCapital CWCapital N N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N Y
94 CWCapital CWCapital Y N N N
95 CWCapital CWCapital Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
00 XXXxxxxxx XXXxxxxxx Y N N N
00 XXXxxxxxx XXXxxxxxx X X X X
000 XXXxxxxxx XXXxxxxxx Y N N N
103 CWCapital CWCapital N N N N
104 CWCapital CWCapital Y N N N
105 CWCapital CWCapital Y N N Y
107 CWCapital CWCapital Y N N Y
108 CWCapital CWCapital Y N N N
109 CWCapital CWCapital Y N N N
110 CWCapital CWCapital Y N N N
111 CWCapital CWCapital Y N N N
112 CWCapital CWCapital N N N N
113 CWCapital CWCapital Y N N N
114 CWCapital CWCapital Y N N N
115 CWCapital CWCapital Y N N N
116 CWCapital CWCapital Y N N N
117 CWCapital CWCapital N N N Y
118 CWCapital CWCapital N N N N
119 CWCapital CWCapital Y N N Y
120 CWCapital CWCapital N N N N
122 CWCapital CWCapital Y N N N
123 CWCapital CWCapital Y N N N
Mortgage Anticipated If ARD loan, Additional Serviced Loan
Loan Number Repayment Date Interest Rate Combination?
----------- -------------- ----------------------------------------------------------------------------------- -------------
7 N
7.01 N
7.02 N
7.03 N
17 06/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
18
20 N
25 04/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
28 N
31 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
35 06/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
35.01 N
35.02 N
39
40
42 N
43 05/01/12 Greater of initial interest rate plus 3% or the Extended Term Treasury Rate plus 3% N
44 N
45 N
46 N
46.01 N
46.02 N
46.03 N
46.04 N
46.05 N
49
50 06/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%
56 06/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%. N
58 N
66 N
67 N
68 07/01/12 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
69 05/01/17 Greater of initial interest rate plus 2.75% or the Treasury Rate plus 2.75% N
70 N
71 N
74 07/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
77 08/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
78 N
80 05/01/17 Greater of initial interest rate plus 3% or the Extended Term Treasury Rate plus 3% N
81 N
84 N
86
87
89 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
90 N
91 N
93 07/01/17 Greater of initial interest rate plus 2% or the Treasury Rate plus 2%. N
94 N
95 N
96 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
98 N
99 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
000 X
000 X
104 N
105 04/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
107 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%. N
000 X
000 X
000 X
000 X
000 X
000 X
114 N
115
116
117 05/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3%. N
118 N
119 08/01/17 Greater of initial interest rate plus 3% or the Treasury Rate plus 3% N
000 X
000 X
000 X
XXXXXXX X
Mortgage Loan Representations and Warranties
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage Loans,
the Seller had good title to, and was the sole owner of, each Mortgage
Loan. The Seller has full right, power and authority to transfer and
assign each of the Mortgage Loans to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The
sale of the Mortgage Loans to the Purchaser or its designee does not
require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4. Lien; Valid Assignment. None of the matters referred to in
clauses (B), (C) or (D) of the definition of "Permitted Liens" (as defined
below), individually or in the aggregate, materially interferes with the
security intended to be provided by such Mortgage, the marketability or
current use of the Mortgaged Property, or the current ability of the
Mortgaged Property to generate operating income sufficient to service the
Mortgage Loan debt. The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form and constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee
named therein all of the assignor's right, title and interest in, to and
under such Mortgage. Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and
creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable security interest in favor of the holder thereof in all
of the related Mortgagor's personal property used in, and reasonably
necessary to operate, the related Mortgaged Property. In the case of a
Mortgaged Property operated as a hotel or an assisted living facility, the
Mortgagor's personal property includes all personal property that a
prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in personal property located on the Mortgaged Property
that is owned by the Mortgagor and either (i) is reasonably necessary to
operate the Mortgaged Property or (ii) is (as indicated in the appraisal
obtained in connection with the origination of the related Mortgage Loan)
material to the value of the Mortgaged Property, to the extent a security
interest may be so created therein, and such security interest is a first
priority security interest, subject to any prior purchase money security
interest or a sale and leaseback financing arrangement in such personal
property and any personal property leases applicable to such personal
property. Notwithstanding the foregoing, no representation is made as to
the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions
other than the filing of Uniform Commercial Code financing statements are
required in order to effect such perfection.
"Permitted Liens" shall mean, (A) the lien for current real estate taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters that are of
public record and/or are referred to in the related mortgagee's title
insurance policy, (C) exceptions and exclusions specifically referred to
in such mortgagee's title insurance policy, (D) other matters to which
like properties are commonly subject and (E) the lien created through the
cross-collateralization of the subject Mortgage Loan with another Mortgage
Loan.
5. Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of
Leases not included in a Mortgage has been executed and delivered in favor
of the Trustee and is in recordable form and constitutes a legal, valid
and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to this Exhibit B), nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment
of Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File since the date upon which the due diligence file related to
the applicable Mortgage Loan was delivered to CWCapital Investments LLC,
or an affiliate.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of
an engineering report within 18 months prior to the Cut-off Date, each
Mortgaged Property is, to the Seller's knowledge, free and clear of any
damage (or adequate reserves therefor have been established) that would
materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing
the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-off Date as set forth on Schedule B-1 to
this Exhibit B, each Mortgaged Property is in good repair and condition
and all building systems contained therein are in good working order (or
adequate reserves therefor have been established) and each Mortgaged
Property is free of structural defects, in each case, that would
materially and adversely affect its value as security for the related
Mortgage Loan as of the date hereof. The Seller has received no notice of
the commencement of any proceeding for the condemnation of all or any
material portion of any Mortgaged Property. To the Seller's knowledge
(based on surveys and/or title insurance obtained in connection with the
origination of the Mortgage Loans), as of the date of the origination of
each Mortgage Loan, all of the material improvements on the related
Mortgaged Property that were considered in determining the appraised value
of the Mortgaged Property lay wholly within the boundaries and building
restriction lines of such property and do not encroach on any third party
easements on the Mortgaged Property, except for encroachments that are
insured against by the mortgagee's title insurance policy referred to
herein or that do not materially and adversely affect the value or
marketability of such Mortgaged Property, and no improvements on adjoining
properties materially encroached upon such Mortgaged Property so as to
materially and adversely affect the value or marketability of such
Mortgaged Property, except those encroachments that are insured against by
the Title Policy referred to herein.
8. Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) mortgagee's
title insurance policy or a marked-up title insurance commitment (on which
the required premium has been paid) which evidences such title insurance
policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy
insures that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to Permitted Liens. Each Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied with,
or any such funds so escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after
default by the related Mortgagor or in connection with any full or partial
release of the related Mortgaged Property or related security for the
related Mortgage Loan.
12. Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within 18
months prior to the Cut-off Date, an environmental site assessment
(meeting American Society for Testing and Materials standards), or an
update of a previous such report, was performed with respect to each
Mortgaged Property in connection with the origination or the sale of the
related Mortgage Loan, a report of each such assessment (or the most
recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the
Seller has no knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property that was not
disclosed in such report. Each Mortgage requires the related Mortgagor to
comply with all applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a material
and adverse environmental condition or circumstance affecting any
Mortgaged Property, (i) a party not related to the Mortgagor was
identified as the responsible party for such condition or circumstance,
(ii) a party related to the Mortgagor having financial resources
reasonably estimated to be adequate to address the situation is required
to take action, or (iii) environmental insurance covering such condition
was obtained or must be maintained until the condition is remediated, or
(iv) the related Mortgagor was required either to provide additional
security that was deemed to be sufficient by the originator in light of
the circumstances and/or to establish an operations and maintenance plan.
In the case of each Mortgage Loan set forth on Schedule B-1 to this
Exhibit B, (i) such Mortgage Loan is the subject of a Secured Creditor
Impaired Property Policy, issued by the issuer set forth on Schedule B-1
(the "Policy Issuer") and effective as of the date thereof (the
"Environmental Insurance Policy"), (ii) the Environmental Insurance Policy
is in full force and effect, (iii)(a) a property condition or engineering
report was prepared, if the related Mortgaged Property was constructed
prior to 1985, with respect to asbestos containing materials ("ACM") and,
if the related Mortgaged Property is a multifamily property, with respect
to radon gas ("RG") and lead based paint ("LBP") and (b) if such report
disclosed the existence of a material and adverse LBP, ACM or RG
environmental condition or circumstance affecting the related Mortgaged
Property, the related Mortgagor (A) was required to remediate the
identified condition prior to closing the Mortgage Loan or provide
additional security or establish with the mortgagee a reserve from loan
proceeds, in an amount deemed to be sufficient by the Seller, for the
remediation of the problem, and/or (B) agreed in the Mortgage Loan
documents to establish an operations and maintenance plan after the
closing of the Mortgage Loan, (iv) on the effective date of the
Environmental Insurance Policy, Seller as originator had no knowledge of
any material and adverse environmental condition or circumstance affecting
the Mortgaged Property (other than the existence of LBP, ACM or RG) that
was not disclosed to the Policy Issuer in one or more of the following:
(a) the application for insurance, (b) a borrower questionnaire that was
provided to the Policy Issuer, or (c) an engineering or other report
provided to the Policy Issuer, and (v) the premium of any Environmental
Insurance Policy has been paid through the maturity of the policy's term
and the term of such policy extends at least five years beyond the
maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment within
18 months prior to the Cut-off Date as set forth on Schedule B-1 to this
Exhibit B, (i) no Hazardous Material is present on such Mortgaged Property
such that (1) the value of such Mortgaged Property is materially and
adversely affected or (2) under applicable federal, state or local law,
(a) such Hazardous Material could be required to be eliminated at a cost
materially and adversely affecting the value of the Mortgaged Property
before such Mortgaged Property could be altered, renovated, demolished or
transferred, or (b) the presence of such Hazardous Material could (upon
action by the appropriate governmental authorities) subject the owner of
such Mortgaged Property, or the holders of a security interest therein, to
liability for the cost of eliminating such Hazardous Material or the
hazard created thereby at a cost materially and adversely affecting the
value of the Mortgaged Property, and (ii) such Mortgaged Property is in
material compliance with all applicable federal, state and local laws
pertaining to Hazardous Materials or environmental hazards, any
noncompliance with such laws does not have a material adverse effect on
the value of such Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related or
similar materials and any other substance or material as may be defined as
a hazardous or toxic substance by any federal, state or local
environmental law ordinance, rule, regulation or order, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. xx.xx. 9601 et seq.), the
Hazardous Materials Transportation Act as amended (42 U.S.C. xx.xx. 6901
et seq.), the Federal Water Pollution Control Act as amended (33 U.S.C.
xx.xx. 1251 et seq.), the Clean Air Act (42 U.S.C. xx.xx. 1251 et seq.)
and any regulations promulgated pursuant thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related
Mortgagor with respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent
with its normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the
principal balance of the related Mortgage Loan and the replacement cost of
the Mortgaged Property, and contains no provisions for a deduction for
depreciation, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in
an amount at least equal to six months of operations of the Mortgaged
Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special
flood hazards and the Federal Emergency Management Agency requires flood
insurance to be maintained); (d) a comprehensive general liability
insurance policy in amounts as are generally required by commercial
mortgage lenders, and in any event not less than $1 million per
occurrence; and (e) if the Mortgaged Property is located in Florida or
within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama,
Georgia, North Carolina or South Carolina, windstorm insurance in an
amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the full insurable value,
or 100% of the replacement cost, of the improvements located on the
related Mortgaged Property. An architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties located in
seismic zone 3 or 4 in order to evaluate the structural and seismic
condition of such property, for the sole purpose of assessing the probable
maximum loss ("PML") for the Mortgaged Property in the event of an
earthquake. In such instance, the PML was based on a 475-year lookback
with a 10% probability of exceedance in a 50-year period. If a seismic
report concluded that the PML on a Mortgaged Property would exceed 20% of
the amount of the replacement costs of the improvements, earthquake
insurance by an insurer rated at least "A-:V" (or the equivalent) by A.M.
Best Company or "BBB-" (or the equivalent) from S&P or Fitch. Such
insurance policy contains a standard mortgagee clause that names the
mortgagee as an additional insured in the case of liability insurance
policies and as a loss payee in the case of property insurance policies
and requires prior notice to the holder of the Mortgage of termination or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage obligates
the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or repair
of the related Mortgaged Property, with any excess insurance proceeds
after restoration or repair being paid to the Mortgagor, or (c) to the
reduction of the principal amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16. Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured
in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such
Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or lender
protection agreement between the Seller and related lessor) does not
prohibit the current use of the Mortgaged Property and does not prohibit
the interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment terms of
such Ground Lease since the origination of the related Mortgage Loan, with
the exception of material changes reflected in written instruments that
are a part of the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the related
Mortgage, other than Permitted Liens;
iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is required, it
has been obtained prior to the Closing Date) and, in the event that it is
so assigned, is further assignable by the Purchaser and its successors and
assigns upon notice to, but without the need to obtain the consent of,
such lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is binding
on a mortgagee unless the mortgagee has consented thereto, and the Seller
has received no notice that an event of default has occurred thereunder,
and, to the Seller's knowledge, there exists no condition that, but for
the passage of time or the giving of notice, or both, would result in an
event of default under the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any default
by the lessee to the holder of the Mortgage; and (B) provides that no
notice of termination given under such Ground Lease is effective against
the holder of the Mortgage unless a copy of such notice has been delivered
to such holder and the lessor has offered or is required to enter into a
new lease with such holder on terms that do not materially vary from the
economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under such Ground Lease) to cure any default under such Ground
Lease, which is curable after the receipt of notice of any such default,
before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than twenty years beyond
the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds or condemnation award
awarded to the holder of the ground lease interest will be applied either
(A) to the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee or a trustee appointed by the related
Mortgage having the right to hold and disburse such proceeds as the repair
or restoration progresses (except in such cases where a provision
entitling a third party to hold and disburse such proceeds would not be
viewed as commercially unreasonable by a prudent commercial mortgage
lender), or (B) to the payment of the outstanding principal balance of the
Mortgage Loan together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by prudent commercial
mortgage lenders lending on a similar Mortgaged Property in the lending
area where the Mortgaged Property is located; and such Ground Lease
contains a covenant that the lessor thereunder is not permitted, in the
absence of an uncured default, to disturb the possession, interest or
quiet enjoyment of the lessee thereunder for any reason, or in any manner,
which would materially adversely affect the security provided by the
related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease or if such Ground Lease is rejected
in a bankruptcy proceeding.
18. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19. Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
20. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by such Mortgage Loan.
21. No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23. Cross-collateralization. Except as set forth on Schedule B-1 to
this Exhibit B, no Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
24. Releases of Mortgaged Property. Since origination, no material
portion of the related Mortgaged Property has been released from the lien
of the related Mortgage, in any manner which materially and adversely
affects the value of the Mortgage Loan or materially interferes with the
security intended to be provided by such Mortgage. The terms of the
related Mortgage or related Mortgage Loan documents do not provide for
release of any material portion of the Mortgaged Property from the lien of
the Mortgage except (a) in consideration of payment therefor of not less
than 125% of the related allocated loan amount of such Mortgaged Property,
(b) upon payment in full of such Mortgage Loan, (c) upon defeasance
permitted under the terms of such Mortgage Loan by means of substituting
for the Mortgaged Property (or, in the case of a Mortgage Loan secured by
multiple Mortgaged Properties, one or more of such Mortgaged Properties)
"government securities", as defined in the Investment Company Act of 1940,
as amended, sufficient to pay the Mortgage Loan in accordance with its
terms, (d) upon substitution of a replacement property with respect to
such Mortgage Loan as set forth on Schedule B-1 hereto, (e) where release
is conditional upon the satisfaction of certain objective underwriting and
legal requirements, the satisfaction of which would be acceptable to a
reasonably prudent commercial mortgage lender and the payment of a release
price that represents at least 125% of the appraised value of such
Mortgaged Property or (f) releases of unimproved out-parcels or other
portions of the Mortgaged Property which will not have a material adverse
effect on the underwritten value of the security for the Mortgage Loan and
which were not afforded any value in the appraisal obtained at the
origination of the Mortgage Loan.
25. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the mortgagee or provides for
negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
26. No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to
the extent the same materially and adversely affects the value of the
Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in this Exhibit B.
27. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of
the related Mortgage Loan.
28. Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
29. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Lien) junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
30. Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan,
Mortgagor or related Mortgaged Property that might adversely affect title
to the Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
31. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
32. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated.
33. Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to the Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for
participation in such programs.
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
the Purchaser.
35. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
36. Single Purpose Entity. Each Mortgage Loan with a Cut-off Date
Principal Balance in excess of $5 million requires the Mortgagor to be for
at least as long as the Mortgage Loan is outstanding and, to the Seller's
knowledge, each such Mortgagor is, a Single Purpose Entity, the
organizational documents of the Mortgagor with respect to each Mortgage
Loan with a Cut-off Date Principal Balance in excess of $15 million
provide that the Mortgagor is a Single Purpose Entity and each Mortgage
Loan with a Cut-off Date Principal Balance of $20 million or more has a
counsel's opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving any other party. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual,
whose organizational documents (or if the Mortgage Loan has a Cut-off Date
Principal Balance equal to $15 million or less, its organizational
documents or Mortgage Loan documents) provide substantially to the effect
that it was formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and prohibit it from engaging in any business unrelated to such
Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and
apart from any other person (other than a Mortgagor for a Mortgage Loan
that is cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and apart
from any other person.
37. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Mortgagor, provided that at least
one natural person (and the Mortgagor if the Mortgagor is not a natural
person) is liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the Mortgagor,
misappropriation of rents, insurance proceeds, or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
38. Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the mortgagee incurred in
connection with the defeasance of such Mortgage Loan and the release of
the related Mortgaged Property, and the borrower is required to pay all
reasonable costs and expenses of the mortgagee associated with the
approval of an assumption of such Mortgage Loan.
39. Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act
of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
40. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41. Utilities. Each Mortgaged Property is served by public
utilities, water and sewer (or septic facilities) and otherwise
appropriate for the use in which the Mortgaged Property is currently being
utilized.
42. Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan
has been serviced, and each provision of the related REMIC declaration has
been complied with in a manner such that the single asset REMIC has not
failed to qualify as a REMIC for federal income tax purposes at any time
since the Startup Day.
43. Separate Tax Lots. Each related Mortgaged Property constitutes
one or more complete separate tax lots (or the related Mortgagor has
covenanted to obtain separate tax lots and a Person has indemnified the
mortgagee for any loss suffered in connection therewith or an escrow of
funds in an amount sufficient to pay taxes resulting from a breach thereof
has been established) or is subject to an endorsement under the related
title insurance policy.
44. No Fraud. In the origination and servicing of the Mortgage Loan,
neither the Seller nor any prior holder of the Mortgage Loan participated
in any fraud or intentional material misrepresentation with respect to the
Mortgage Loan. To Seller's knowledge, no Mortgagor or guarantor originated
a Mortgage Loan.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including knowledge of a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, mortgagee's title policy and any letters of credit or Ground Leases,
if such document is not included in the Mortgage File, the Seller shall make
such representation or warranty without any such qualification. Wherever there
is a reference in a representation or warranty to receipt by, or possession of,
the Seller of any information or documents, or to any action taken by the Seller
or to any action which has not been taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, the Seller. For purposes of these representations and warranties,
when referring to the conduct of "reasonable prudent institutional commercial or
multifamily, as applicable mortgage lenders" (or similar such phrases and
terms), such conduct shall be measured by reference to the industry standards
generally in effect as of the date the related representation or warranty
relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
Schedule B-1
(a) Mortgage Loans Permitting Property Substitutions.
None.
(b) Mortgage Loans with no Engineering Report within 18 Months prior to the
Cut-off Date.
None.
(c) Mortgage Loans with no Environmental Assessment within 18 Months prior to
the Cut-off Date.
None.
(d) Mortgage Loans with Secured Creditor Impaired Property Policy.
None.
(e) Mortgage Loans for which the related Mortgaged Property has been subjected
to partial releases of real property.
None.
(f) Cross-collateralized / crossed-out
None.
EXHIBIT C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit B to the
Mortgage Loan Purchase Agreement for CWCapital.
The Mortgage Loan known as 321 Xxxxxxxxx Center Drive has an
Indemnity Deed of Trust structure. The related Mortgagor under such Mortgage
Loan executed and delivered the related note to the lender and is obligated to
make payments thereunder. The related property owner for such Mortgage Loan
executed an Indemnity Deed of Trust and Security Agreement in favor of the
lender, guaranteeing all amounts payable by the Mortgagor under the related
note. With respect to certain of the representations and warranties, with
respect to this Mortgage Loan, statements regarding the Mortgagor relate to the
property owner of the related Mortgaged Property.
-------------------------------------------------------------------------------------------------------------------
Annex A
ID# Mortgage Loan Exception
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 2: Whole Loan; Ownership of Mortgage Loans
-------------------------------------------------------------------------------------------------------------------
95 The Northcrest Apartments In addition to the Mortgage Loan, the related Mortgaged
Property secures a subordinate B-note.
-------------------------------------------------------------------------------------------------------------------
94 Cedar Ridge Townhomes In addition to the Mortgage Loan, the related Mortgaged
Property secures a subordinate B-note, which upon the
satisfaction of certain requirements as set forth in the
related co-lender agreement converts to a pari passu A-note.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 4: Lien; Valid Assignment
-------------------------------------------------------------------------------------------------------------------
28 Xxxxx of North Bend Apartments Purchase money security interests in specific equipment or
other personal property in no event to exceed $50,000 are
permitted. If such purchase money security interests in
addition secure cable television equipment and security
devices on the Mortgaged Property, then the debt incurred
relative to any purchase money security interests on the
Security Property may not exceed in the aggregate $250,000.
Borrower may grant and encumber the security property with
cable company easements and/or service or utility easements
(the "Easements"), provided the Easements do not materially,
adversely affect the security property.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 7: Condition of Property; Condemnation
-------------------------------------------------------------------------------------------------------------------
58 Xxxxxx'x Mill The Mortgaged Property is not wholly in compliance with the
fire code. A recourse carve-out has been added to the loan
documents providing that the Borrower shall be liable for
any losses resulting from fire code violations until
sufficient evidence is provided to Seller that the
violations are fully satisfied.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 8: Title Insurance
-------------------------------------------------------------------------------------------------------------------
44 321 Xxxxxxxxx Center Drive Representation made as to Trustor under Indemnity Deed of
Trust. (CWCapital has made a loan to Borrower, which loan
is evidence by a promissory note. Borrower's obligations
under the promissory note are guaranteed by a Guaranty
Agreement from Cross-Frederick Associates, LLC (which entity
owns the Mortgaged Property). The Guaranty Agreement is
secured by, among other things, an Indemnity Deed of Trust
and Indemnity Assignment of Leases and Rents which are given
by Cross-Frederick Associates, LLC.)
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 14: Insurance
-------------------------------------------------------------------------------------------------------------------
Various The Mortgage Loan documents generally require property
insurance against loss customarily included under an "all
risk" property insurance policy but certain "all risk"
policies do not specifically cover lightning, windstorm,
hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles and smoke and/or may
specifically exclude windstorm or other such coverage.
Certain of the Mortgage Loan documents may limit terrorism
insurance coverage to the extent such coverage is
commercially available for similarly situated properties
and/or on commercially reasonable terms. Certain of the
Mortgage Loan documents provide limits on the insurance
premium amount the related Mortgagor is required to spend
for terrorism insurance. Certain of the loan documents do
not specifically require terrorism insurance to be
maintained.
-------------------------------------------------------------------------------------------------------------------
31 One Deerwood Center (1) Lender shall accept a windstorm deductible of five
percent (5%) of the replacement cost, subject to the minimum
per occurrence deductible of $250. (2) $5,000,000 excess
and/or umbrella liability insurance shall be obtained and
maintained for any and all claims, including all legal
liability imposed upon Borrower and all court costs and
attorneys' fees incurred in connection with the ownership,
operation and maintenance of the security property with a
deductible or self-insured retention of no greater than
$10,000.
-------------------------------------------------------------------------------------------------------------------
86 Tanglewood Apartments Co-insurance provisions were permitted and included in the
mortgage. Windstorm and hail deductible of 3% was permitted.
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX
-------------------------------------------------------------------------------------------------------------------
86 Tanglewood Apartments Law and Ordinance insurance was waived but losses arising
out of absence of law and ordinance insurance are a
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX non-recourse carveout.
-------------------------------------------------------------------------------------------------------------------
87 0000 00xx Xxxxxx XX The application of insurance proceeds shall be governed by
the Babies R' Us lease and the Bed Bath & Beyond lease.
-------------------------------------------------------------------------------------------------------------------
89 Walgreens - Brighton, NY Borrower's requirement to maintain insurance in its own name
and to escrow for insurance is waived, pending continued
Walgreens - Camilus, NY tenancy and other criteria related to the "Walgreen Lease",
99 as defined in the security instrument.
-------------------------------------------------------------------------------------------------------------------
74 Sweet Ovations Plant Borrower's requirement to maintain insurance in its own name
and to escrow for insurance is waived, pending continued
tenancy and other criteria related to the "Sweet Ovations
Lease", as defined in the Security Instrument. With respect
to the Terrorism Policy, a carveout exists in the Note
pending Borrower providing evidence that Tenant is obligated
to pay for such coverage.
-------------------------------------------------------------------------------------------------------------------
119 36 Middlesex Turnpike Tenant has a triple-net lease and maintains insurance on the
property. Borrower's obligation to maintain insurance in
its own name and escrow for same is waived so long as tenant
has required coverages in place.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 16: Mortgagor Bankruptcy
-------------------------------------------------------------------------------------------------------------------
All Mortgage Loans The Seller makes no representation regarding the bankruptcy
or insolvency of any tenant at the Mortgaged Property.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 17: Leasehold Estate
-------------------------------------------------------------------------------------------------------------------
117 Xxxxx Alley Mortgaged Property is a condominium.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 19: Escrow Deposits
-------------------------------------------------------------------------------------------------------------------
89 Walgreens - Brighton, NY Escrows waived so long as the "Walgreen Lease" criteria, set
forth in the security instrument, are met.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 24: Releases of Mortgaged Property
-------------------------------------------------------------------------------------------------------------------
7 Tradewinds Hospitality The Mortgage Loan documents permit the borrower to obtain
Portfolio the release of an individual property, known as the
Breckenridge property, subject to the following conditions,
among others: (i) the borrower pays to the lender a release
price in the amount of $12,000,000, (ii) the borrower has
sold the Breckenridge property pursuant to an arms' length
agreement to a third party not affiliated with the borrower
or guarantor, (iii) the debt service coverage ratio for the
remaining property is not less than 1.70x, (iv) the
loan-to-value ratio for the remaining mortgaged property
shall be no more than 40%, (v) no event of default has
occurred and is continuing, (vi) the payment of a yield
maintenance premium and (vii) the borrower pays all costs
and expenses incurred by the related lender.
-------------------------------------------------------------------------------------------------------------------
77 Xxxxxxx Town Center The Mortgage Loan documents permit the borrower to obtain
the partial release of the related mortgaged property,
subject to the satisfaction of certain conditions, among
others: (i) no event of default has occurred or is
continuing, (ii) the minimum debt service coverage ratio is
required to equal the greater of 1.10x and the debt service
coverage ratio immediately prior to the release, (iii) if
the appraised value of the parcel being released is greater
than or equal to 10% of the value of the related mortgaged
property, payment by the borrower of a release price equal
to 115% of the allocated loan amount plus a yield
maintenance premium (or, if the appraised value of the
release parcel is less than 10% of the value of the related
mortgaged property, payment by the borrower of a release
price equal to 100% of the allocated loan amount plus a
yield maintenance premium).
-------------------------------------------------------------------------------------------------------------------
109 The Greenway/Xxxxxxx'x Landing The Mortgage Loan documents permit the borrower to obtain
Apartments the release of a portion of the Mortgaged Property
consisting of 38,422 square foot unimproved parcel, subject
to the satisfaction of certain conditions, including, but
not limited to: (i) no event of default has occurred under
the Mortgage Loan documents, (ii) borrower's preparation of
a partial release instrument and (iii) delivery by the
borrower of an updated title insurance policy.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 29: Junior Liens
-------------------------------------------------------------------------------------------------------------------
28 Xxxxx of North Bend Apartments Purchase money security interests in specific equipment or
other personal property in no event to exceed $50,000 are
permitted. If such purchase money security interests in
addition secure cable television equipment and security
devices on the Mortgaged Property, then the debt incurred
relative to any purchase money security interests on the
security property may not exceed in the aggregate $250,000.
Borrower may grant and encumber the Security Property with
cable company easements and/or service or utility easements
(the "Easements"), provided the Easements do not materially,
adversely affect the security property.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 35: Due on Sale
-------------------------------------------------------------------------------------------------------------------
40 Xxxxxxxx Apartments
49 Dorado Heights Apartments The loan documents allow for standard estate planning
transfers and transfers upon death without lender's consent
Landmark Apartments or payment or a fee, provided there is no "change in
71 control" in Mortgagor.
-------------------------------------------------------------------------------------------------------------------
46 Illinois Student Housing The Mortgage Loan documents permit the non-managing members
Portfolio of the borrower to pledge their interests in the borrower to
secure a mezzanine loan, subject to the satisfaction of
certain criteria, including, but not limited to that the
combined debt service coverage ratio is no less than 1.05x
and the combined loan-to-value ratio is no greater than 85%.
-------------------------------------------------------------------------------------------------------------------
28 Xxxxx of North Bend Apartments The Mortgage Loan documents permit the equity holders of the
borrower to pledge their interests in the borrower to secure
a mezzanine loan, subject to the satisfaction of certain
criteria, including, but not limited to that the combined
debt service coverage ratio is no less than 1.10x and the
combined loan-to-value ratio is no greater than 85%.
-------------------------------------------------------------------------------------------------------------------
58 Xxxxxx'x Mill An equity holder of the borrower has incurred mezzanine debt
in the original principal amount of $675,000 secured by its
equity interest in the Mortgagor. An intercreditor
agreement has been entered into between the Seller and the
mezzanine lender.
-------------------------------------------------------------------------------------------------------------------
94 Cedar Ridge Townhomes The Mortgage Loan documents permit the equity holders of the
borrower to pledge their interests in the borrower to secure
a mezzanine loan, subject to the satisfaction of certain
criteria, including, but not limited to that the combined
debt service coverage ratio is no less than 1.05x and the
combined loan-to-value ratio is no greater than 85%.
-------------------------------------------------------------------------------------------------------------------
84 San Marin Apartments - El The Mortgage Loan documents permit the equity holders of the
Paso, TX borrower to pledge their interests in the borrower to secure
a mezzanine loan, subject to the satisfaction of certain
criteria, including, but not limited to that the combined
debt service coverage ratio is no less than 1.10x and the
combined loan-to-value ratio is no greater than 85%.
The loan documents permit transfers upon death and for bona
fide estate planning.
-------------------------------------------------------------------------------------------------------------------
94 Cedar Ridge Townhomes Mortgage contains CWCapital's standard estate planning
(including transfers upon death of an individual) provisions.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 36: Single Purpose Entity
-------------------------------------------------------------------------------------------------------------------
Various Certain special purpose entity borrowers may be recycled
entities who in the past were not in compliance with all of
the special purpose entity requirements.
-------------------------------------------------------------------------------------------------------------------
25 Preferred Freezer - CWCapital waived counsel's opinion regarding
Philadelphia, PA non-consolidation
-------------------------------------------------------------------------------------------------------------------
86 Tanglewood Apartments Borrower is a "recycled" SPE and Borrower defeased its
former loan obligation. Incident thereto, Borrower was
00 Xxxxxxxxx - Xxxxxxxxxxxxx, XX released from its obligations under its former note, but
does have certain limited liabilities remaining.
-------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx Xxxxx With respect to the SPE provisions, the company has not
incurred any indebtedness, secured or unsecured, direct or
indirect, absolute or contingent (including guaranteeing any
obligations), other than (I) the mortgage, (II) unsecured
trade and operational debt incurred in the ordinary course
of business, (III) debt incurred in the financing of
equipment and other personal property used on the project,
but, in no event, to exceed $50,000, and (IV) the state
credit adjustment payable to the special member pursuant to
the operating agreement.
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 37: Non-Recourse Exceptions
-------------------------------------------------------------------------------------------------------------------
20 Mission Gate There is no guaranty.
42 Xxxxxxxx Reserve Apartments
-------------------------------------------------------------------------------------------------------------------
28 Xxxxx of North Bend Apartments The guarantor is a limited liability company organized under
the laws of the Commonwealth of Virginia.
-------------------------------------------------------------------------------------------------------------------
123 Doral Office Building The guarantor of the recourse obligations of Mortgagor is
RB-II TRUST, a trust organized and existing under the laws
of the Isle of Man.
-------------------------------------------------------------------------------------------------------------------
17 0000 Xxxxxxxxx Xxxxxx & 831 No warm body guarantor.
Xxxx Street
18 Vinings Corner Apartments
119 36 Middlesex Turnpike
93 Xxxxxx Xxxxx
-------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 39: Defeasance
-------------------------------------------------------------------------------------------------------------------
95 The Northcrest Apartments Direct, non-callable REMIC eligible government securities
which are issued by the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation
are permitted as defeasance collateral.
-------------------------------------------------------------------------------------------------------------------
