EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of March 14, 2007, between ROYAL BANK OF CANADA (the "Seller"), acting through
its branch located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as
seller, and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated and effective as of March 1, 2007, among CCMSI, as
depositor, Wachovia Bank, National Association, Midland Loan Services, Inc. and
Capmark Finance Inc., as master servicers (each, a "Master Servicer" and,
together, the "Master Servicers"), LNR Partners, Inc., as special servicer (the
"Special Servicer"), ▇▇▇▇▇ Fargo Bank, National Association, as trustee (the
"Trustee"), and LaSalle Bank National Association, as certificate administrator
(the "Certificate Administrator"). Capitalized terms used herein (including the
schedules attached hereto) but not defined herein (or in such schedules) have
the respective meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
Deutsche Bank Securities Inc. ("DBS"), LaSalle Financial Services, Inc., RBC
Capital Markets Corporation and PNC Capital Markets LLC (collectively, the
"Dealers"), pursuant to an underwriting agreement dated as of the date hereof
(the "Underwriting Agreement"), between CCMSI and the Dealers. The Publicly
Offered Certificates are more particularly described in a prospectus supplement
dated March 14, 2007 (the "Prospectus Supplement") and the accompanying base
prospectus dated March 5, 2007 (the "Base Prospectus" and, together with the
Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and DBS, pursuant to
a certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI, CGMI and DBS. The Privately Offered
Certificates are more particularly described in an offering memorandum dated
March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and/or Standard & Poor's Rating
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $338,918,899 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The Seller Mortgage Loan
Balance, together with the aggregate principal balance of the Other Mortgage
Loans as of the Cut-off Date (after giving effect to any payments due on or
before such date whether or not such payments are received), is expected to
equal an aggregate principal balance (the "Cut-off Date Pool Balance") of
$6,599,815,279 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on March 29, 2007 or such other date
as shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the Mortgage
Loans shall consist of a cash amount, payable in immediately available funds, as
reflected on the settlement statement agreed to by the Seller and the Purchaser,
which amount shall include interest accrued on the Seller Mortgage Loan Balance
for the period from and including the Cut-off Date up to but not including the
Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the Seller of the Aggregate Purchase Price and satisfaction or waiver of the
other conditions to closing that are for the benefit of the Seller, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (except as set forth in this Agreement), all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, on a servicing-released basis,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance and
any escrow, reserve or comparable accounts related to the Mortgage Loans,
subject, in the case of any Mortgage Loan that is part of a Loan Combination, to
the rights of the holder(s) of any other mortgage loan(s) in the related Loan
Combination in such proceeds and reserve or comparable accounts, and further
subject to the understanding that the Seller will sell certain servicing rights
to the applicable Master Servicer pursuant to that certain Servicing Rights
Purchase Agreement, dated as of the Closing Date, between such Master Servicer
and the Seller, and may require that a particular primary servicer remain in
place with respect to any or all of the Mortgage Loans.
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(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver or cause to be delivered to the Trustee (with a copy
(except in the case of an Outside Serviced Trust Mortgage Loan or any letter of
credit referred to in clause (xi)(D) below) to the applicable Master Servicer
and the Special Servicer within ten (10) Business Days after the Closing Date)
the documents and instruments specified below under clauses (i), (ii), (vii),
(ix)(A) and (xi)(D) and shall, not later than the date that is 30 days after the
Closing Date, deliver or cause to be delivered to the Trustee (with a copy to
the applicable Master Servicer) the remaining documents and instruments
specified below, in each case with respect to each Mortgage Loan that is a
Serviced Trust Mortgage Loan (the documents and instruments specified below,
collectively, the "Mortgage File"). The Mortgage File for each Serviced Trust
Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage
Loan, the original executed Mortgage Note including any power of attorney
related to the execution thereof, together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of "▇▇▇▇▇ Fargo Bank, National Association, as trustee for the
registered holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Serviced Non-Trust Mortgage
Loan, a copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "▇▇▇▇▇ Fargo Bank,
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National Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iii) above), in favor of "▇▇▇▇▇ Fargo Bank, National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or specimen version of, or a marked commitment
for, the policy that has been executed by an authorized representative of
the title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or
other evidence of filing reasonably satisfactory to the Purchaser of any
prior UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing office;
and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "▇▇▇▇▇ Fargo Bank, National Association,
as trustee for the registered holders of CD 2007-CD4 Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD 2007-CD4"
(and, in the case of any A/B Loan Combination, also on behalf of the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as assignee, or
in blank;
(ix) an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
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(xi) copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating to a
Trust Mortgage Loan (with the original of any such letter of credit to be
delivered to the applicable Master Servicer).
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
the other Crossed Loan(s) in such Crossed Group, to the extent that such same
document is also required to be part of the Mortgage File for such other Crossed
Loan(s) in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans), promptly (and
in any event, as to any such Mortgage Loan, within 90 days following the later
of (i) the Closing Date and (ii) the delivery of the related Mortgage(s),
Assignment(s) of Leases, recordable documents, and UCC Financing Statements to
the Trustee) complete (if and to the extent necessary) and cause to be submitted
for recording or filing, as the case may be, in favor of the Trustee in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan referred to in Sections 2(c)(iv)(A), (B) and (C) and each assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the recorded
original of each such assignment of recordable documents to be delivered to the
Trustee or its designee following recording and shall cause the file copy of
each such UCC Financing Statement to be delivered to the Trustee or its designee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain therefrom a
certified copy of the recorded original, which shall be delivered to the Trustee
or its designee. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter cause the same to be duly
recorded or filed, as appropriate. The Seller shall be responsible for the
out-of-pocket costs and expenses of the Recording/Filing Agent in connection
with its performance of the recording, filing and delivery obligations
contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all
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documents and records in the Seller's possession (except draft documents,
attorney-client privileged communications and internal correspondence, credit
underwriting or due diligence analyses, credit committee briefs or memoranda or
other internal approval documents or data or internal worksheets, memoranda,
communications or evaluations and other underwriting analysis of the Seller)
relating to, and necessary for the servicing and administration of, each
Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan) and that are
not required to be part of the Mortgage File in accordance with the definition
thereof (including, without limitation, any original letters of credit relating
to any Mortgage Loan); and (ii) within two (2) Business Days after the Closing
Date, any and all escrow amounts and reserve amounts in the Seller's possession
or under its control that relate to the Mortgage Loans (other than an Outside
Serviced Trust Mortgage Loan).
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan (other than an
Outside Serviced Trust Mortgage Loan). Without limiting the generality of the
foregoing, if a draw upon a letter of credit is required before its transfer to
the Trust Fund can be completed, the Seller shall draw upon such letter of
credit for the benefit of the Trust pursuant to written instructions from the
applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a Canadian chartered bank acting acting
through its branch located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇ and possesses all requisite authority, power, licenses, permits
and franchises to carry on its business as currently conducted by it and
to execute, deliver and comply with its obligations under the terms of
this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general, as they
may be applied in the context of the insolvency of a Canadian chartered
bank or its federally-licensed New York branch, and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws;
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(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the financial
condition or the operations of the Seller or its properties (taken as a
whole) or have consequences that would materially and adversely affect its
performance hereunder;
(v) The Seller is not a party to or bound by any
agreement or instrument or subject to any other corporate restriction or
any judgment, order, writ, injunction, decree, law or regulation that
would, in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or that requires the consent of any third person to
the execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions involving the
Seller contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) For purposes of accounting under generally
accepted accounting principles ("GAAP"), and for federal income tax
purposes, the Seller will report the transfer of the Mortgage Loans to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration contemplated by this Agreement. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not
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transferring the Mortgage Loans to the Purchaser with any intent to
hinder, delay or defraud any of the creditors of the Seller or on account
of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedules III and IV. References in this Agreement to "Breach" mean a breach of
any such representations and warranties made pursuant to this Section 3(b) with
respect to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Closing Date) and pay
the applicable Master Servicer for deposit into its Collection Account, any
Substitution Shortfall Amount in connection therewith; provided that, if a
Document Defect or Breach is capable of being cured but not within such 90-day
period and the Seller has commenced and is diligently proceeding with the cure
of such Document Defect or Breach within such 90-day period, then unless such
Document Defect or Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, such Seller shall have an additional 90 days to complete such cure
(or, failing such cure, to repurchase or substitute for the related Mortgage
Loan); and provided, further, that with respect to such additional 90-day period
the Seller shall have delivered an officer's certificate to the Trustee setting
forth what actions the Seller is pursuing in connection with the cure thereof
and stating that the Seller anticipates that such Document Defect or Breach will
be cured within the additional 90-day period; and provided, further, that if the
cure of any Document Defect or Breach would require an expenditure on the part
of the Seller in excess of $10,000, then the Seller may, at its option, within
the time period provided above, elect to purchase or replace the affected
Mortgage Loan in accordance with this Section 3 without attempting to cure such
Document Defect or Breach, as the case may be. For a period of two years from
the Closing Date, so long as there remains any Mortgage File relating to a
Mortgage Loan as to which there is an uncured Document Defect that, to the
Seller's knowledge, existed as of the Closing Date, and that materially and
adversely affects the value of the applicable Mortgage Loan or the interests of
the Certificateholders therein, the Seller shall provide the officer's
certificate to the Trustee described above as to the reasons such Document
Defect remains uncured and as to the actions being taken to pursue cure.
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No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of or
substitution for the affected Crossed Loan only, including, without limitation,
any modification required with respect to such repurchase or substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or substitution for
the affected Crossed Loan only shall satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein or in the
Pooling and Servicing Agreement. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the
applicable Master Servicer to determine if the Crossed Loan Repurchase Criteria
have been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld). To the
extent that the Seller is required to purchase or substitute for a Crossed Loan
hereunder in the manner prescribed above while the Purchaser continues to hold
any other Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other's Primary Collateral, but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Crossed Loans, including, with respect to the Purchaser, the
Primary Collateral securing the Crossed Loans still held by the Purchaser, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed
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Loans can be modified in a manner that complies with this Agreement to remove
the threat of material impairment as a result of the exercise of remedies or
some other accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents or, if not
specified in the related Mortgage Loan documents, on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document Defect or Breach
shall materially and adversely affect the value of the related Mortgage Loan or
the interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master
10
Servicer and the Special Servicer shall release to the Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or replaced
Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a
11
breach of, or constitutes or will constitute a default under (i) any term or
provision of the Purchaser's certificate of incorporation or bylaws, (ii) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Purchaser or its
assets, which default might have consequences that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Purchaser or its properties
or have consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the validity of this Agreement or any action taken in
connection with the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser to enter into
and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to CCMSI, the Seller, the Dealers and their respective counsel in
their reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable Master
Servicer, respectively, all documents
12
represented to have been or required to be delivered to the Trustee and such
Master Servicer on or before the Closing Date pursuant to Section 2 of this
Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall each have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) The Underwriters and Initial Purchasers shall have received
letters from an independent accounting firm reasonably acceptable to CCMSI and
the Seller in form satisfactory to CCMSI, relating to certain information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus,
the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement and
the Indemnification Agreement are true and correct in all material respects at
and as of the Closing Date with the same effect as if made on such date,
subject, in the case of the representations and warranties made by the Seller
pursuant to Section 3(b) of this Agreement, to the exceptions to such
representations and warranties set forth in Schedules III and IV to this
Agreement; and (ii) the Seller has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part that are required
under this Agreement to be performed or satisfied at or prior to the Closing
Date;
(c) A certificate of in-house counsel to the Seller, dated the
Closing Date, and upon which CCMSI and the Dealers may rely, to the effect that
the individual specified in such certificate who, as an officer or
representative of the Seller, signed this Agreement or any other document set
forth in such certificate on or before the Closing Date in connection with the
transactions contemplated herein, has been authorized by a power of attorney to
execute and deliver in the name and on behalf of the Seller, this Agreement and
any such other document, and the signature of such person appearing in this
Agreement and such documents are his genuine signatures;
(d) A true and complete copy of the by-laws of the Seller (as
certified to by the Secretary or an assistant secretary of the Seller), a
certificate of confirmation of the Seller
13
issued by Canada's Office of the Superintendent of Financial Institutions, and a
certificate as to the branch license of the Seller's New York branch issued by
the Comptroller of the Currency of the United States not earlier than thirty
(30) days prior to the Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the Dealers and
the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies;
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage Loans by the
Seller to the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
reasonably satisfactory to the Seller and its counsel, dated the Closing Date
and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Seller Mortgage Loan
Balance represents of the Cut-off Date Pool Balance the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding to which the Seller and the Purchaser (or affiliates thereof) are
parties with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans, the Other Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and other customary
offering materials, including the cost of obtaining any "comfort letters" with
respect to such items; (vii) the reasonable out-of-pocket costs and expenses in
connection with the qualification or exemption of the Certificates under state
securities or "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any "Blue Sky" survey and in connection with any determination of
the eligibility of the Certificates for investment by institutional investors
and the preparation of any legal investment survey; (viii) the expenses of
printing any such "Blue Sky" survey and legal investment survey; and (ix) the
reasonable fees and disbursements of counsel to the Dealers. All other costs and
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
14
SECTION 8. Grant of a Security Interest. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement, and in connection therewith the Seller authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code financing
statements.
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
15
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
which obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party which commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the
16
Purchaser, except that any person into which the Seller may be merged,
amalgamated or consolidated, or any corporation resulting from any merger,
amalgamation, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. 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 which such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(d)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate with accountants designated by CCMSI and reasonably acceptable to the
Seller in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge", such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized representatives as
of the date first above written.
SELLER
ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
ROYAL BANK OF CANADA MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Royal Bank of Canada
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
I-1
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan, including those
pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application
of any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other Person.
I-2
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there is no
valid offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each case,
with respect to the enforceability of any provisions requiring the payment
of default interest, late fees, Additional Interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the legal,
valid and binding assignment from the Seller, except as such enforcement
may be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage Loan is
part of a Loan Combination, the lien of the Mortgage for the related
Non-Trust Loan(s). Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of a Loan
Combination, there are no mortgage loans that are senior or pari passu in
right of
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payment with the subject Mortgage Loan that are secured by the related
Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to
the extent that possession or control of such items or actions other than
the filing of UCC Financing Statements are required in order to effect
such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with, in the case of taxes and governmental
assessments not presently due and payable, future escrow payments required
to be made pursuant to the related Mortgage Loan documents) to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage loans by
the Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would materially and adversely affect the
value of such Mortgaged Property as security for the Mortgage Loan, and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part
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of a Loan Combination, in the original (aggregate, if applicable)
principal amount of the other mortgage loan(s) constituting the related
Loan Combination) after all advances of principal (as set forth on the
Mortgage Loan Schedule) is insured by an ALTA lender's title insurance
policy (or a binding commitment therefor), or its equivalent as adopted in
the applicable jurisdiction, insuring the Seller, its successors and
assigns, subject only to the Title Exceptions; the Seller or its
successors or assigns is the named insured of such policy; such policy is
assignable in connection with the assignment of the related Mortgage Note
without consent of the insurer and will inure to the benefit of the
Trustee as mortgagee of record; such policy is in full force and effect
upon the consummation of the transactions contemplated by this Agreement;
all premiums thereon have been paid; no material claims have been made
under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; and such policy
contains no material exclusions for, or affirmatively insures (except for
any Mortgaged Property located in a jurisdiction where such insurance is
not available) (a) access to a public road and (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the original
principal balance of the Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting
the related Loan Combination), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such
Mortgaged Property is operated as a manufactured housing community, such
Mortgaged Property is also covered by business interruption or rental loss
insurance, in an amount at least equal to twelve (12) months of operations
of the related Mortgaged Property (or in the case of a Mortgaged Property
without any elevator, six (6) months); and as of the Cut-off Date, to the
actual knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent by a commercial and multifamily mortgage lending
institution with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in
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respect of a casualty loss are required to be applied either (i) to the
repair or restoration of all or part of the related Mortgaged Property or
(ii) to the reduction of the outstanding principal balance of the Mortgage
Loan, subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent commercial and multifamily mortgage lending institutions
for similar loans. The Mortgaged Property is also covered by comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent commercial and
multifamily mortgage lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to non-payment, ten (10) days prior written notice to
the Mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage requires that the Mortgagor maintain insurance as described above
or permits the Mortgagee to require insurance as described above, and
permits the Mortgagee to purchase such insurance at the Mortgagor's
expense if Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage
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Rate (exclusive of any default interest, late charges or prepayment
premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to Treasury
regulations Sections 1.860-G(2)(a)(3) and 1.860G(2)(f)(2)), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii)
as of the Closing Date. For purposes of the previous sentence, (A) the
fair market value of the referenced interest in real property shall first
be reduced by (1) the amount of any lien on such interest in real property
that is senior to such Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is on a parity with the
Mortgage Loan, and (B) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (1) such Mortgage Loan was
modified after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (2) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected
to a "significant modification" after the date of its origination and at a
time when such Mortgage Loan was not in default or when default with
respect to such Mortgage Loan was not reasonably foreseeable, the Testing
Date shall be the date upon which the latest such "significant
modification" occurred.
19. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting
firm independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such environmental
site assessments, updates and transaction screens, and the Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that
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term is defined in the Standard Practice for Environmental Site
Assessments: Phase I Environmental Site Assessment Process Designation: E
1527-00, as recommended by the American Society for Testing and Materials
(ASTM), with respect to the related Mortgaged Property and the same have
not been subsequently addressed in all material respects, then one or more
of the following is true: (i) an escrow greater than 100% of the amount
identified as necessary by the environmental consulting firm to address
the REC is held by the Seller for purposes of effecting same (and the
related Mortgagor has covenanted in the Mortgage Loan documents to perform
such work); (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation; (iii) the related Mortgagor has provided
a lender's environmental insurance policy (in which case such Mortgage
Loan is identified on Annex A to this Schedule I); (iv) an operations and
maintenance plan has been or will be implemented; (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; or (vi) the Mortgagor or other responsible
party has obtained a no further action letter or other evidence that
governmental authorities have no intention of taking any action or
requiring any action in respect of the REC. All environmental assessments
or updates that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance carrier issuing
such policy prior to the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains no
equity participation by the Seller or shared appreciation feature and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or, other
than the ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest in the related Mortgagor.
23. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of
I-8
property comparable to the related Mortgaged Property, each related
Mortgage or loan agreement contains provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without
complying with the requirements of the Mortgage or loan agreement, (a) the
related Mortgaged Property, or any controlling interest in the related
Mortgagor, is directly transferred or sold (other than by reason of family
and estate planning transfers, transfers by devise, descent or operation
of law upon the death or incapacity of a member, general partner or
shareholder of the related Mortgagor, transfers of less than a controlling
interest in a mortgagor, issuance of non-controlling new equity interests,
transfers among existing members, partners or shareholders in the
Mortgagor or an affiliate thereof, transfers among affiliated Mortgagors
with respect to cross-collateralized and cross-defaulted Mortgage Loans or
multi-property Mortgage Loans or transfers of a similar nature to the
foregoing meeting the requirements of the Mortgage Loan, such as pledges
of ownership interest that do not result in a change of control) or a
substitution or release of collateral is effected other than in the
circumstances specified in representation (26) below, or (b) the related
Mortgaged Property is encumbered in connection with subordinate financing
by a lien or security interest against the related Mortgaged Property,
other than any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior
to the related origination date.
26. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage
in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, and, except with respect to Mortgage Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the
Mortgage Loan, (c) where release is conditional upon the satisfaction of
certain underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged Property
or the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in compliance with
REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will not have
a material adverse affect on the underwritten value of the security for
the Mortgage Loan or that were not allocated any value in the underwriting
during the origination of the Mortgage Loan, the terms of the related
Mortgage do not provide for
I-9
release of any portion of the Mortgaged Property from the lien of the
Mortgage except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof
which (a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements which
were included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the Mortgage
Loan lies outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon
such Mortgaged Property to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
title insurance).
29. With respect to at least 95% of the Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the
Initial Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or Mortgaged
Properties, as applicable, and assets incidental to its ownership and
operation of such Mortgaged Property, and to hold itself out as being a
legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received from
any Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect such Mortgagor's ability to pay principal, interest or any
I-10
other amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is
in full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the Mortgage
Loan, the related Mortgagor was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, and, as of the Cut-off Date, the Seller has no actual knowledge
that the related Mortgagor was not in possession of such licenses, permits
and authorizations.
37. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan
have been in all material respects legal and the servicing and collection
practices used by the Seller or its affiliates with respect to the
Mortgage Loan have met customary industry standards for servicing of
commercial mortgage loans for conduit loan programs.
I-11
38. Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
39. The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related Mortgagor accepts responsibility for fraud and/or other
intentional material misrepresentation. The Mortgage Loan documents for
each Mortgage Loan provide that the related Mortgagor shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two (2) years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or, in
the case of a partial defeasance, in an amount sufficient to make all
scheduled payments with respect to the defeased portion of such Mortgage
Loan). In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys' fees),
and provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which the
lender can require) (i) an accountant's certification as to the adequacy
of the defeasance collateral to make payments under the related Mortgage
Loan for the remainder of its term, (ii) an Opinion of Counsel that the
defeasance complies with all applicable REMIC Provisions, and (iii)
assurances from the Rating Agencies that the defeasance will not result in
the withdrawal, downgrade or qualification of the ratings assigned to the
Certificates. Notwithstanding the foregoing, some of the Mortgage Loan
I-12
documents may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged Property
to be encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of money
junior to or of equal priority with, or superior to, the lien of the
related Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmen's liens that become payable after the
Cut-off Date of the related Mortgage Loan).
I-13
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
None.
I-14
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than thirty (30) days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period.
4. To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than payments due
but not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than
twenty (20) years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution), or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS
AND WARRANTIES
8. [Lien; Valid Assignment]
o Lake Ridge Apts (104782) ($7,200,000): Borrower owns 100% of
units in condominium regime; Owners' association never
activated, however
o Lake ▇▇▇▇▇▇▇ ▇▇ Depot (102986) ($3,000,000): Borrower owns 56%
interest in condominium regime; Owner's association never
formed, however
III-1
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
IV-1
ANNEX A
MORTGAGE LOAN SCHEDULE
A-1
MORTGAGE LOAN
LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS
------------------------------------------------------------------------------------------------------------------------------------
14 RBC 1 200 West ▇▇▇▇▇ 200 ▇. ▇▇▇▇▇
25 RBC 1 ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
52 RBC 1 ▇▇▇▇▇▇▇▇▇▇▇ Plaza 15710 ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Center ▇▇▇▇ ▇▇▇▇▇▇ & Kedzie Avenue
86 RBC 1 Central Storage Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ & 3847, 3839-41 &3835 Airline Highway
------------------------------------------------------------------------------------------------------------------------------------
87 RBC 1 StorQuest ▇▇▇▇▇▇▇ Self Storage ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
88 RBC 1 StorQuest Sunland Self Storage ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
------------------------------------------------------------------------------------------------------------------------------------
99 RBC 2 Presidio Apartments 1 Presidio Pointe
100 RBC ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (1000 Bond Street, 1100 Bond Street,
1200 Tar Heel Road, 1209 Tar Heel Road, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇)
▇▇▇ ▇▇▇ 2 Door Creek Apartments ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
114 RBC ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 8393-8533 Church Ranch Boulevard, 10138-10168 North ▇▇▇▇▇▇▇▇▇ Pkwy
118 RBC 1 West Creek Center ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ 2 Lake Ridge Apartments ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
196 RBC 1 StorQuest - Centennial #2 ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇
200 RBC 1 Storage One - Anthem ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇ 1 Staples ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
210 RBC 1 Devon Self Storage ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇ 1 National City Self Storage ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
232 RBC 1 StorQuest - ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
234 RBC ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇ 1 Storage Solutions Hamburg ▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇ 1 3102 East Hebron ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
284 RBC 1 Central Self Storage New Bedford ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇ 1 Moove In Self Storage ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
295 RBC 1 Lake ▇▇▇▇▇▇▇ Self Storage Depot ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇
301 RBC 1 Central Self Storage - Milford ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ 1 Lock it Up Self Storage #3 ▇▇▇▇▇ 305 East 2000 North
349 RBC 1 Lock it Up Self Storage #1 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
CROSS
CUT-OFF DATE COLLATERALIZED MASTER
LOAN PRINCIPAL (MORTGAGE MORTGAGE SERVICING ARD LOAN
NUMBER CITY STATE ZIP CODE COUNTY BALANCE LOAN GROUP) RATE FEE RATE (YES/NO)?
----------------------------------------------------------------------------------------------------------------------------------
14 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ 100,000,000.00 No 5.6300% 0.0200% No
25 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 46,000,000.00 No 5.4500% 0.0200% No
52 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 24,400,000.00 No 5.8200% 0.0200% ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ 18,000,000.00 No 5.8200% 0.0200% No
▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 13,000,000.00 No 5.7200% 0.0200% No
----------------------------------------------------------------------------------------------------------------------------------
87 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles 7,770,000.00 Yes (C3) 5.9800% 0.0200% No
88 ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles 5,230,000.00 Yes (C3) 5.9800% 0.0200% No
----------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Kanawha 11,200,000.00 No 5.8600% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Mecklenburg 11,100,000.00 No 5.5500% 0.0200% No
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Dane 10,500,000.00 No 5.4500% 0.0200% No
114 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Jefferson 10,080,000.00 No 5.5800% 0.0200% No
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 10,000,000.00 No 5.5000% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Franklin 7,200,000.00 No 5.4500% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ 6,900,000.00 No 5.5200% 0.0200% No
196 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Arapahoe 5,450,000.00 No 5.7500% 0.0200% No
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 5,350,000.00 No 5.8600% 0.0200% No
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ 5,142,873.62 No 5.6100% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Mecklenburg 5,028,463.55 No 5.6500% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ San Diego 4,500,000.00 No 5.5900% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,400,000.00 No 5.8900% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Erie 4,350,000.00 No 5.5800% 0.0200% No
274 ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Sussex 3,400,000.00 No 5.6200% 0.0200% No
275 ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 3,391,163.51 No 5.5100% 0.0200% No
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Bristol 3,150,000.00 No 5.7600% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Lancaster 2,993,233.53 No 5.7400% 0.0200% No
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Snohomish 2,990,566.52 No 5.7500% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Worcester 2,800,000.00 No 5.6400% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 2,745,068.87 No 5.9000% 0.0200% ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 1,847,529.11 No 5.9500% 0.0200% No
INTEREST
RESERVE
ADDITIONAL MORTGAGE PERIODIC PAYMENT ON
LOAN INTEREST RATE LOAN FIRST DUE DATE AFTER
NUMBER ARD AFTER ARD (YES/NO)? LOAN TYPE GRACE PERIOD STATED MATURITY DATE CLOSING
-------------------------------------------------------------------------------------------------------------------------------
14 Yes Interest Only 5 01/01/12 484,805.56
25 Yes Interest Only 0 01/01/17 215,880.56
52 Yes Interest Only 5 01/01/14 122,284.67
64 Yes Partial IO/Balloon 5 03/01/17 90,210.00
86 Yes Partial IO/Balloon 5 02/01/17 64,032.22
-------------------------------------------------------------------------------------------------------------------------------
87 Yes Partial IO/Balloon 5 12/01/16 40,011.18
88 Yes Partial IO/Balloon 5 12/01/16 26,931.59
-------------------------------------------------------------------------------------------------------------------------------
99 Yes Partial IO/Balloon 5 01/01/17 56,516.44
100 Yes Interest Only 5 01/01/15 53,048.75
107 Yes Interest Only 5 02/01/17 49,277.08
114 Yes Interest Only 10 03/01/17 48,434.40
118 Yes Interest Only 10 12/01/16 47,361.11
166 Yes Partial IO/Balloon 5 01/01/17 33,790.00
173 Yes Interest Only 5 01/01/12 32,798.00
196 Yes Partial IO/Balloon 5 01/01/17 26,985.07
200 Yes Interest Only 5 01/01/17 26,996.69
206 Yes Balloon 5 02/01/14 29,597.55
210 Yes Balloon 5 01/01/17 29,092.68
229 Yes Partial IO/Balloon 5 03/01/17 21,661.25
232 Yes Partial IO/Balloon 5 03/01/12 22,316.56
234 Yes Partial IO/Balloon 5 02/01/12 20,901.75
274 Yes Partial IO/Balloon 5 01/01/17 16,454.11
275 Yes Balloon 5 02/01/17 23,407.38
284 Yes Partial IO/Balloon 5 01/01/17 15,624.00
293 Yes Balloon 5 01/01/17 17,488.13
295 Yes Balloon 5 12/01/16 17,507.19
301 Yes Partial IO/Balloon 5 02/01/17 13,598.67
303 Yes Balloon 5 02/01/17 17,550.57
349 Yes Balloon 5 02/01/17 11,032.28
ORIGINAL REMAINING
TERM TO TERM TO STATED STATED
MATURITY MATURITY ORIGINAL REMAINING DEFEASANCE
LOAN / ARD / ARD AMORTIZATION AMORTIZATION LOAN PROPERTY
NUMBER (MONTHS) (MONTHS) TERM (MONTHS) TERM (MONTHS) (YES/NO)? BORROWER'S INTEREST PROPERTY SIZE SIZE TYPE
----------------------------------------------------------------------------------------------------------------------------
14 60 58 Interest Only Interest Only Yes Fee Simple 677,222 SF
25 120 118 Interest Only Interest Only Yes Fee Simple 300,301 SF
52 84 82 Interest Only Interest Only Yes Fee Simple 214,742 SF
64 120 120 360 360 Yes Fee Simple 177,535 SF
86 120 119 360 360 Yes Fee Simple 76,706 SF
----------------------------------------------------------------------------------------------------------------------------
87 120 117 360 360 Yes Fee Simple 60,771 SF
88 120 117 360 360 Yes Fee Simple 51,031 SF
----------------------------------------------------------------------------------------------------------------------------
99 120 118 360 360 Yes Fee Simple 159 Units
100 96 94 Interest Only Interest Only No Fee Simple 488,438 SF
107 120 119 Interest Only Interest Only Yes Fee Simple 132 Units
114 120 120 Interest Only Interest Only Yes Fee Simple 55,446 SF
118 120 117 Interest Only Interest Only Yes Fee Simple 53,324 SF
166 120 118 360 360 Yes Fee Simple 160 Units
173 60 58 Interest Only Interest Only No Leasehold 308 Units
196 120 118 360 360 Yes Fee Simple 111,734 SF
200 120 118 Interest Only Interest Only Yes Fee Simple 85,055 SF
206 84 83 360 359 Yes Fee Simple 20,341 SF
210 120 118 360 358 Yes Fee Simple 91,383 SF
229 120 120 360 360 Yes Fee Simple 73,967 SF
232 60 60 360 360 Yes Fee Simple 76,625 SF
234 60 59 360 360 No Fee Simple 156 Units
274 120 118 360 360 Yes Fee Simple 40,128 SF
275 120 119 240 239 Yes Fee Simple 18,892 SF
284 120 118 360 360 Yes Fee Simple 70,075 SF
293 120 118 360 358 Yes Fee Simple 55,080 SF
295 120 117 360 357 Yes Fee Simple 73,520 SF
301 120 119 360 360 Yes Fee Simple 58,125 SF
303 120 119 300 299 Yes Fee Simple 57,030 SF
349 120 119 360 359 Yes Fee Simple 53,660 SF
ESCROWED ESCROWED
ANNUAL REPLACEMENT
REAL ESCROWED RESERVES ESCROWED REPLACEMENT ESCROWED TI/LC ESCROWED TI/LC
LOAN ESTATE ANNUAL INITIAL RESERVES CURRENT RESERVES INITIAL RESERVES CURRENT
NUMBER LOCKBOX (YES/NO)? TAXES INSURANCE DEPOSIT ANNUAL DEPOSIT DEPOSIT ANNUAL DEPOSIT
----------------------------------------------------------------------------------------------------------------------------
14 Springing Yes Yes 0 67,728 7,480,000 337,476
25 No Yes Yes 0 51,108 2,500,000 0
52 No Yes Yes 0 42,948 1,150,000 0
64 No Yes Yes 35,508 0 44,388
86 No Yes Yes 0 12,276 NAP NAP
----------------------------------------------------------------------------------------------------------------------------
87 No Yes No 0 9,120 NAP NAP
88 No Yes No 0 7,428 NAP NAP
----------------------------------------------------------------------------------------------------------------------------
99 No Yes Yes 0 31,800 NAP NAP
100 No No No 468,900 0 250,000 0
107 No Yes Yes 0 26,400 NAP NAP
114 No Yes Yes 0 0 0 0
118 No Yes Yes 0 0 0 0
166 No Yes Yes 0 39,204 NAP NAP
173 Springing Yes Yes 200,000 343,636 NAP NAP
196 No Yes No 0 16,764 NAP NAP
200 No No No 0 12,756 NAP NAP
206 No No No 0 3,051 0 11,391
210 No No No 114,000 13,692 NAP NAP
229 No Yes No 0 10,740 NAP NAP
232 No Yes No 0 11,436 NAP NAP
234 No Yes Yes 0 7,800 NAP NAP
274 No No No 0 6,024 NAP NAP
275 No Yes Yes 0 3,780 10,000 0
284 No No No 0 10,512 NAP NAP
293 No Yes Yes 0 8,268 NAP NAP
295 No Yes Yes 0 10,188 NAP NAP
301 No No No 0 8,724 NAP NAP
303 No Yes Yes 0 8,556 NAP NAP
349 No Yes Yes 0 8,052 NAP NAP
INITIAL
DEFERRED INITIAL
LOAN MAINTENANCE ENVIRONMENTAL ENVIRONMENTAL INSURANCE
NUMBER DEPOSIT DEPOSIT HOLDBACK AMOUNT LOC POLICY
--------------------------------------------------------------------------------------------------
14 255,375 0
25 11,813 0
52 0 0 614,364
64 5,000 0
86 0 0 1,250,000
--------------------------------------------------------------------------------------------------
87 0 0 390,000
88 0 0 320,000
--------------------------------------------------------------------------------------------------
99 0 0 600,000
100 750,000 0
107 0 0
114 0 0
118 0 0
166 3,450 0
173 0 0
196 1,875 0 700,000
200 0 0
206 0 0
210 0 0
229 0 0
232 0 0 300,000
234 0 0
274 0 0
275 6,500 0
284 0 0
293 0 0
295 0 0
301 0 0 447,000
303 0 0
349 0 0
