Exhibit 99.3
CGMRC Mortgage Loan Purchase Agreement
See Attached
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of August 1,
2007 (the "Agreement"), between Citigroup Global Markets Realty Corp. (together
with its successors and permitted assigns hereunder, the "Seller") and CWCapital
Commercial Funding Corp. (together with its successors and permitted assigns
hereunder, the "Purchaser"), the Seller intends to sell and the Purchaser
intends to purchase certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans"), as identified on the schedule annexed
hereto as Exhibit A (the "Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together with
other assets, into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates") to be identified as the CWCapital
Commercial Funding Corp., COBALT CMBS Commercial Mortgage Trust 2007-C3,
Commercial Mortgage Pass-Through Certificates, Series 2007-C3. One or more "real
estate mortgage investment conduit" ("REMIC") elections will be made with
respect to the Trust Fund. The Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), to be dated as
of August 1, 2007, among the Purchaser, as depositor, Wachovia Bank, National
Association, as master servicer (the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer"), and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein have the respective meanings set forth in the Pooling and Servicing
Agreement, as in effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of August 3, 2007, with Wachovia Capital
Markets, LLC ("Wachovia") and Citigroup Global Markets Inc. ("Citi" and,
together with Wachovia, in such capacity, the "Underwriters"), whereby the
Purchaser will sell to the Underwriters all of the Certificates that are to be
registered under the Securities Act of 1933, as amended (the "Securities Act").
The Purchaser has also entered into a Certificate Purchase Agreement (the
"Certificate Purchase Agreement"), dated as of August 3, 2007, with Wachovia and
Citi (collectively, in such capacity, the "Initial Purchasers"), whereby the
Purchaser will sell to the Initial Purchasers all of the remaining Certificates
(other than the Residual Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Initial Purchasers have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of August
3, 2007.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $473,137,534.19 (the
"Citigroup Mortgage Loan Balance") as of the close of business on, with respect
to each Mortgage Loan, its Due Date in August, 2007 (each such date, the
applicable "Cut-off Date"), after giving effect to any and all payments of
principal due thereon on or before such date, whether or not received. The
purchase and sale of the Mortgage Loans shall take place on August 17, 2007, or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). Adequate consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds (or by such other
method as shall be mutually acceptable to the parties hereto) on the Closing
Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, subject to the
rights of the holders of any related Companion Loans as specified in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby assumes such
Mortgage Loans, together with the rights and obligations related to such
Mortgage Loans as specified in the related Co-Lender Agreement. The Mortgage
Loan Schedule, as it may be amended, shall conform to the requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights of the
holders of any related Companion Loans, as applicable, be entitled to receive
all scheduled payments of principal and interest due after the Cut-off Date, and
all other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date for each Mortgage Loan, but collected after such
date, shall, subject to the rights of the holders of any related Companion
Loans, as applicable, belong to, and be promptly remitted to, the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of the
initial Purchaser, deliver to and deposit with, or cause to be delivered to and
deposited with, the Trustee a Mortgage File for each Mortgage Loan in accordance
with the terms of, and conforming to the requirements set forth in, the Pooling
and Servicing Agreement; provided that, with respect to any Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by delivery of the
original Mortgage Note (and all intervening endorsements) related to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered under the
applicable Lead PSA. If the Seller cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation, the Seller shall deliver to the
Trustee a copy of the original, certified by the Seller to be a true and
complete copy of the original thereof submitted for recording or filing.
Concurrently with such delivery, the Seller shall deliver, or cause to be
delivered, to the Master Servicer and the Special Servicer copies of the
Mortgage Note, Mortgage(s) and any reserve and cash management agreements with
respect to each Mortgage Loan (other than a Non-Serviced Trust Loan) for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan (other than a Non-Serviced Trust Loan) for
which a Mortgage File is required to be delivered to the Trustee, the Seller
shall bear the reasonable out-of-pocket costs and expenses related to recording
or filing, as the case may be, in the appropriate public office for real
property records or Uniform Commercial Code financing statements, as
appropriate, each related assignment of Mortgage and assignment of Assignment of
Leases, in favor of the Trustee referred to in clause (a)(iv) of the definition
of "Mortgage File" and each related UCC-2 and UCC-3 assignment referred to in
clause (a)(viii) of the definition of "Mortgage File." If any such document or
instrument is lost or returned unrecorded or unfiled, as the case may be,
because of a defect therein, then the Seller shall prepare a substitute therefor
or cure such defect or cause such to be done, as the case may be, and the Seller
shall deliver such substitute or corrected document or instrument to the Trustee
(or, if the Mortgage Loan is then no longer subject to the Pooling and Servicing
Agreement, to the then holder of such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the Master
Servicer within 10 business days after the Closing Date, all documents and
records that (i) relate to the servicing and administration of the Mortgage
Loans that are Serviced Loans, (ii) are reasonably necessary for the ongoing
administration and/or servicing of the Mortgage Loans that are Serviced Loans
and (iii) are in possession or control of the Seller, together with (x) all
unapplied Escrow Payments and Reserve Funds in the possession or under control
of the Seller that relate to the Mortgage Loans that are Serviced Loans and (y)
a statement indicating which Escrow Payments and Reserve Funds are allocable to
such Serviced Loans), provided that the Seller shall not be required to deliver
any draft documents, privileged or other internal communications, credit
underwriting, due diligence analyses or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the Purchaser,
as provided herein, the Seller shall not take any action inconsistent with the
Purchaser's ownership of the Mortgage Loans. Except for actions that are the
express responsibility of another party hereunder or under the Pooling and
Servicing Agreement, and further except for actions that the Seller is expressly
permitted to complete subsequent to the Closing Date, the Seller shall, on or
before the Closing Date, take all actions required under applicable law to
effectuate the transfer of the Mortgage Loans by the Seller to the Purchaser.
(g) The Seller shall provide, or cause to be provided, information
necessary for the Master Servicer to produce the initial data with respect to
each Mortgage Loan for the CMSA Financial File and the CMSA Loan Periodic Update
File that are required to be prepared by the Master Servicer pursuant to the
Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the Supplemental
Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with the
Purchaser, as of the date hereof, that:
(i) The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, is duly qualified as
a foreign organization in good standing in all jurisdictions to the extent
such qualification is necessary to hold and sell the Mortgage Loans or
otherwise comply with its obligations under this Agreement, except where
the failure to be so qualified would not have a material adverse effect on
its ability to perform its obligations hereunder, and possesses all
requisite authority and power to carry on its business as currently
conducted by it and to execute, deliver and comply with its obligations
under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance with
its terms, except as such enforcement may be limited by (A) bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
affecting the enforcement of creditors' rights in general, and (B) general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's organizational documents, (B) violate any
law or regulation or any administrative decree or order to which the Seller
is subject or (C) constitute a default (or an event which, with notice or
lapse of time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to which
the Seller is a party or by which the Seller is bound.
(iv) The Seller is not in default with respect to any order or decree
of any court or any order, regulation or demand of any federal, state,
municipal or other governmental agency or body, which default would
reasonably be expected to have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Seller or its
properties or have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any organizational document or any other corporate
restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in the Seller's reasonable and good faith judgment,
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution and delivery of this Agreement by the Seller or the
performance by the Seller of its obligations under this Agreement.
(vi) Except for the recordation and/or filing of assignments and other
transfer documents with respect to the Mortgage Loans (other than the
Non-Serviced Trust Loans), as contemplated by Section 2(d), no consent,
approval, authorization or order of, registration or filing with, or notice
to, any court or governmental agency or body, is required for the
execution, delivery and performance by the Seller of or compliance by the
Seller with this Agreement or the consummation of the transactions
contemplated by this Agreement; and no bulk sale law applies to such
transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage Loans
to the Purchaser as a sale for accounting and tax purposes. In connection
with the foregoing, the Seller shall cause all of its records to reflect
such transfer as a sale (as opposed to a secured loan). The consideration
received by the Seller upon the sale of the Mortgage Loans to the Purchaser
will constitute at least reasonably equivalent value and fair consideration
for the Mortgage Loans. The Seller will be solvent at all relevant times
prior to, and will not be rendered insolvent by, the sale of the Mortgage
Loans to the Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller. After giving effect to its transfer of the Mortgage Loans to
the Purchaser, as provided herein, the value of the Seller's assets, either
taken at their present fair saleable value or at fair valuation, will
exceed the amount of the Seller's debts and obligations, including
contingent and unliquidated debts and obligations of the Seller, and the
Seller will not be left with unreasonably small assets or capital with
which to engage in and conduct its business. The Mortgage Loans do not
constitute all or substantially all of the assets of the Seller. The Seller
does not intend to, and does not believe that it will, incur debts or
obligations beyond its ability to pay such debts and obligations as they
mature.
(ix) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B attached hereto, except as otherwise set forth on Exhibit C
attached hereto.
SECTION 4. Representations and Warranties of the Purchaser. In order to
induce the Seller to enter into this Agreement, the Purchaser hereby represents
and warrants for the benefit of the Seller as of the date hereof that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser
has the full corporate power and authority and legal right to acquire the
Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser and, assuming due authorization, execution and
delivery hereof by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general, and
(B) general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser,
as provided herein, as a sale of the Mortgage Loans to the Purchaser in
exchange for the consideration specified in Section 1 hereof.
(vi) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will
result in a breach of, or requires or will require the consent of any third
person or constitutes or will constitute a default under (A) any term or
provision of the Purchaser's certificate of incorporation or bylaws, (B)
any term or provision of any material agreement, contract, instrument or
indenture, to which the Purchaser is a party or by which the Purchaser is
bound, or (C) any law, rule, regulation, order, judgment, writ, injunction
or decree or any court or governmental authority having jurisdiction over
the Purchaser or its assets.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the Seller.
(a) If the Seller discovers or receives notice in accordance with
Section 10 hereof of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the related
Mortgaged Property or the interests of the Purchaser in such Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material Document
Defect" or a "Material Breach," as the case may be), then (subject to Section
5(b)) the Seller shall, within 90 days after its discovery or receipt of such
notice of such Material Document Defect or Material Breach (or, in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days after any party discovering such Material Document Defect or
Material Breach) (such 90-day period, in either case, the "Initial Resolution
Period"), (i) cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, which cure shall include payment of any
Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or any related REO Property, or in the case of any REO
Property related to a Loan Group, the Seller's interest therein) from, and in
accordance with the directions of, the Purchaser or its designee, at a price
equal to the Purchase Price; provided that if (A) any such Material Breach or
Material Document Defect, as the case may be, does not affect whether the
Mortgage Loan was, as of the Closing Date, is or will continue to be a Qualified
Mortgage, (B) such Material Breach or Material Document Defect, as the case may
be, is capable of being cured but not within the applicable Initial Resolution
Period, (C) the Seller has commenced and is diligently proceeding with the cure
of such Material Breach or Material Document Defect, as the case may be, within
the applicable Initial Resolution Period and (D) the Seller shall have delivered
to the Purchaser a certification executed on behalf of the Seller by an officer
thereof confirming that such Material Breach or Material Document Defect, as the
case may be, is not capable of being cured within the applicable Initial
Resolution Period, setting forth what actions the Seller is pursuing in
connection with the cure thereof and stating that the Seller anticipates that
such Material Breach or Material Document Defect, as the case may be, will be
cured within an additional period not to exceed 90 days beyond the end of the
applicable Initial Resolution Period, then the Seller shall have such additional
90-day period (the "Resolution Extension Period") to complete such cure or,
failing such, to repurchase the affected Mortgage Loan (or the related Mortgaged
Property) unless, solely in the case of a Material Document Defect, (x) the
Mortgage Loan is, at the end of the Initial Resolution Period, then a Specially
Serviced Mortgage Loan and a Servicing Transfer Event has occurred as a result
of a monetary default or as described in clause (e), clause (f) or clause (g) of
the definition of "Specially Serviced Mortgage Loan" in the Pooling and
Servicing Agreement and (y) the Material Document Defect was identified in a
certification delivered to Seller by the Trustee pursuant to Section 2.02 of the
Pooling and Servicing Agreement not less than 90 days prior to the delivery of
the notice of such Material Document Defect; and provided, further, that, if any
such Material Document Defect is still not cured after the initial 90-day period
and any such additional 90-day period solely due to the failure of the Seller to
have received the recorded document, then the Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Document Defect so long as the Seller certifies to the Purchaser every 30 days
thereafter that the Document Defect is still in effect solely because of its
failure to have received the recorded document or a copy thereof and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Any such repurchase of a
Mortgage Loan shall be on a whole loan, servicing released basis. The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Breach or Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Provided that if the Master Servicer has notice of such Material
Document Defect or Material Breach, the Master Servicer shall notify the Seller
if the related Mortgage Loan becomes a Specially Serviced Mortgage Loan during
any applicable cure periods. Any of the following document defects shall be
conclusively presumed to be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, together with the
endorsements referred to in clause (a)(i) of the definition of "Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and indemnity
with respect to the missing Mortgage Note and any missing endorsement that
appears to be regular on its face, (b) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of the original executed Mortgage
or a copy of such Mortgage certified by the local authority with which the
Mortgage was recorded, in each case with evidence of recording thereon, that
appears to be regular on its face, unless there is included in the Mortgage File
a copy of the executed Mortgage and a certificate stating that the original
signed Mortgage was sent for recordation, (c) other than with respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the original or a
copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (d) other
than with respect to a Non-Serviced Trust Loan, the absence from the Mortgage
File of any intervening assignments required to create a complete chain of
assignment to the Trustee on behalf of the Trust and a certificate stating that
the original intervening assignments were sent for recordation, unless there is
included in the Mortgage File a certified copy of the intervening assignment,
(e) other than with respect to a Non-Serviced Trust Loan, the absence from the
Mortgage File of a copy of the ground lease with respect to any leasehold
mortgages or (f) other than with respect to a Non-Serviced Trust Loan, the
absence from the Servicing File of any original letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties, and (z) the
applicable Material Breach of Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall use reasonable
efforts, subject to the terms of the related Mortgage Loans, to prepare and, to
the extent necessary and appropriate, have executed by the related Mortgagor and
record, such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loans in such Cross-Collateralized Group that are to be repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination or release will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) a written confirmation from
each Rating Agency that such termination or release will not cause an Adverse
Rating Event to occur with respect to any Class of Certificates, (ii) the debt
service coverage ratio for the four preceding calendar quarters for all of the
Mortgage Loans relating to such Cross-Collateralized Group remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder (if one is
acting) has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
Seller within 10 Business Days of the Directing Holder's receipt of a written
request for such consent); and provided, further, that the Seller may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage Loan in lieu
of terminating the cross-collateralization or a release of the affected
Mortgaged Properties from the cross-collateralization of the Mortgage Loan. In
the event that the cross-collateralization of any Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan secured by a
portfolio of Mortgaged Properties is released pursuant to this paragraph, the
Seller may elect either to repurchase only the affected Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All reasonable
costs and expenses incurred by the Purchaser or its designee pursuant to this
paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have executed and
delivered such instruments of endorsement, transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall deliver to the
Seller all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller any escrow
payments or reserve funds held by it, or on its behalf, in respect of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any modification of
the Mortgage Loan pursuant to a workout, foreclosure, sale or other liquidation
pursuant to, and in accordance with, the Pooling and Servicing Agreement shall
not constitute a defense to any repurchase claim disputed by the Seller nor
shall such modification change the Purchase Price due from the Seller for any
repurchase claim. In the event of any such modification, the Seller hereby
agrees to repurchase the Mortgage Loan as modified, if the Seller is required to
or elects to repurchase such Mortgage Loan in accordance with the terms of this
Section 5. Any sale of the related Mortgage Loan, or foreclosure upon such
Mortgage Loan and sale of the successor REO Property, shall be without (i)
recourse of any kind (either expressed or implied) by such Person against the
Seller and (ii) representation or warranty of any kind (either expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or successor REO
Property, which claim shall be made in accordance with this Section 5. If a
court of competent jurisdiction issues a final order that the Seller is or was
obligated to repurchase the related Mortgage Loan or the successor REO Loan or
the Seller otherwise accepts liability, then, after the expiration of any
applicable appeal period, but in no event later than the termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing Agreement, the
Seller will be obligated to pay to the Trust the difference between (i) any
Liquidation Proceeds received upon such liquidation net of Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in such action
shall be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the Seller set
forth in Section 5(a) to cure any Material Breach or Material Document Defect or
to repurchase the affected Mortgage Loan constitute the sole remedies available
to the Purchaser with respect to any Breach or Document Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph 38 of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear reasonable costs and expenses associated with a defeasance, as
set forth in paragraph 38 (any such costs or expenses, referred to herein as
"Covered Costs"), then the Purchaser or its designee will direct the Seller in
writing to wire transfer to the Custodial Account, within 90 days of receipt of
such direction, the amount of any such reasonable costs and expenses incurred by
the Trust that (i) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided that
such payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser and the
Trustee with any Additional Form 10-D Disclosure and any Additional Form 10-K
Disclosure set forth next to the Purchaser's name on Exhibit P and Exhibit Q of
the Pooling and Servicing Agreement within the time periods set forth in the
Pooling and Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP,
Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement, shall be true and correct in all material respects as of the Closing
Date;
(b) Insofar as it affects the obligations of the Seller hereunder, the
Pooling and Servicing Agreement shall be in a form mutually acceptable to the
Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser and the Seller, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties thereto;
(d) A Certificate of the Seller, executed by a duly authorized officer
of the Seller and dated the Closing Date, and upon which the Purchaser, the
Underwriters and the Initial Purchasers may rely, to the effect that the Seller
has, in all material respects, complied with all the agreements and satisfied
all the conditions on its part that are required under this Agreement to be
performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of the Seller, dated the
Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents or certificates are their genuine signatures, or
such other statement relating to incumbency that is acceptable to the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the Seller, true and correct copies
of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller issued by the Secretary of
State of the State of New York as of a recent date;
(g) A favorable opinion of counsel to the Seller, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to the Purchaser,
the Underwriters, the Initial Purchasers, the Rating Agencies and, upon request,
the other parties to the Pooling and Servicing Agreement, together with such
other opinions of such counsel as may be required by the Rating Agencies in
connection with the transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement; and
(i) A letter of counsel of the Seller, subject to customary exceptions
and carveouts, dated the Closing Date and addressed to the Underwriters, to the
effect that nothing has come to such counsel's attention that would lead such
counsel to believe that the Prospectus Supplement as of the date thereof or as
of the Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller or the
Mortgage Loans, in the light of the circumstances under which they were made,
not misleading.
SECTION 8. Costs. The reasonable out-of-pocket costs and expenses
incurred by the Seller, each other mortgage loan seller, the Purchaser, the
Underwriters and the Initial Purchasers in connection with the securitization of
the Mortgage Loans and the other transactions contemplated by this Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement shall be
payable as set forth in a separate writing among such parties on the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto agree that
it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands
and other communications required hereunder shall be in writing and telecopied
or delivered to the intended recipient at the "Address for Notices" specified on
Schedule A hereof or, as to either party, at such other address as shall be
designated by such party in a notice hereunder to the other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee) until the
termination of the Pooling and Servicing Agreement pursuant to the terms
thereof.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT WILL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY IN
SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER AND
THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY NEW
YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO MATTERS
ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH
RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, THE
DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their respective successors and permitted assigns.
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller has
consented to such amendment or modification in writing.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
CITIGROUP GLOBAL MARKETS REALTY CORP.
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
PURCHASER
CWCAPITAL COMMERCIAL FUNDING CORP.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Managing Director
SCHEDULE A
Notices
Seller:
Address for Notices:
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
Purchaser:
Address for Notices:
CWCapital Commercial Funding Corp.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx
EXHIBIT A
Mortgage Loan Schedule
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2007-C3
EXHIBIT A
CITIGROUP
Mortgage Loan Number Property Name
--------------------- ------------------------------------------------
1 Xxxxxxx River Plaza North
14 Alameda Media Center
19 The Encino Courtyard
21 Rio Norte Shopping Center
23 Chant Portfolio - Pool 2
23.01 0000 Xxxxxxxxx Xxxxxx
23.02 0000 Xxxxxxxxx Xxxxxx
23.03 0000 Xxxxxx Xxxxxxxxx
23.04 0000 Xxxxxxxxx Xxxxxx
34 1111 & 0000 Xxxxxx Xxxxxx
36 Joe's Xxxxxxxx
41 Fox Chase Apartments
51 Timberhill Shopping Center
00 Xxxxxx Xxxxxx Shops
54 Tahiti Village Restaurant Building
55 GE Distribution Center
57 Channel Pointe Plaza
60 Microtel Airport Inn & Suites - Philadelphia, PA
64 Verizon Wireless I
65 Verizon Wireless II
00 XxxxxXxxxx Xxxxxx - Xxxx Xxxxx, XX
73 1601 Precision Park Lane
00 Xxxxxxxxx Xxx & Xxxxxx - Xxxxxxxx, XX
76 Ville Montee Apartments
79 0000 Xxxxxx Xxxxxx
82 University Place Apartments
83 Jasper Medical Office Building
85 University Park
00 Xxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxxxx
00 XX0 Retail
100 Xxxx Xxxxx Factory
102 Norco Centre
106 Wometco Building
000 XXX - Xxxxx Xxxx Xxxxx, XX
000 Xxxxxxxxxx Xxxxx Retail Center
Mortgage Loan Number Address City State Zip Code
--------------------- ----------------------------------------------------------- ---------------- ----- --------
1 000 Xxxxxxxxx Xxxxxx Xxxxxx XX 00000
14 0000 Xxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
19 00000 Xxxxxxx Xxxxxxxxx Xxxxxx XX 00000
21 5404-5506 San Xxxxxxxx & 0000 Xxxxx Xxxxx Xxxxxx Xxxxxx XX 00000
23 Various Xxxxxxxxxxx XX 00000
23.01 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
23.02 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
23.03 0000 Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
23.04 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx XX 00000
34 1111 & 0000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000
36 00000 000xx Xxxxx Xxxxxxxxx Xxxxxxxx XX 00000
41 0000 Xxxxxxxxxxx Xxxx Xxxxxxx XX 00000
51 0000-0000 Xxxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000
52 000-000 Xxxxx Xxxx Xxxxxx Xxxx Xxxx XX 00000
54 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx Xxx Xxxxx XX 00000
55 000 Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
57 0000 Xxxx Xxxxxx Xxxxxx XX 00000
60 0000 Xxxxxxx Xxxxxxxxx Xxxxxxxxxxxx XX 00000
64 0000 000xx Xxxxxx Xxxxxxxx XX 00000
65 0000 000xx Xxxxxx XX Xxxxxxxx XX 00000
72 0000 Xxxxxxxxxxxxx Xxxxx Xxxx Xxxxx XX 00000
73 0000 Xxxxxxxxx Xxxx Xxxx Xxx Xxxxxx XX 00000
75 0000 Xxxx Xxx Xxxxxxxx XX 00000
76 0000 Xxxxxx Xxxx, 000 Xxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx XX 00000
79 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000
82 000 Xxxx 00xx Xxxxxx Xxxxxxxxxx XX 00000
83 220 & 000 X. X. Xxxxx Xxxxx Xxxxxx XX 00000
85 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
88 00000-00 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxx XX 00000
92 0000 Xxxxx Xxxx Xxxx Xxxxxxxx XX 00000
97 00000 Xxxxxxxxxxx Xxxxxxx Xxxxxxx XX 00000
100 00 Xxxx Xxxxxx Xxx Xxxxxxxxx XX 00000
102 1750, 1810, 1820 and 0000 Xxxxxx Xxxxxx, 0000 Xxxxxx Xxxxxx Xxxxx XX 00000
106 0000 Xxxxx xx Xxxx Xxxxxxxxx Xxxxx Xxxxxx XX 00000
121 0000 Xxxxxxx Xxxxxx Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000
124 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx XX 00000
Mortgage Loan Number Cut-Off Date Loan Balance ($) Monthly P&I Payments ($) Mortgage Rate
--------------------- ----------------------------- ------------------------ -------------
1 145,000,000 IO 5.6060%
14 36,000,000 IO 5.6600%
19 27,462,000 IO 6.2690%
21 25,120,000 144,082 5.5920%
23 24,800,000 145,610 5.8060%
23.01
23.02
23.03
23.04
34 17,000,000 104,705 6.2530%
36 15,500,000 90,749 5.7800%
41 14,525,000 83,312 5.5920%
51 11,000,000 62,512 5.5080%
52 10,950,000 IO 6.3900%
54 10,182,000 62,111 6.1620%
55 10,150,000 58,924 5.7020%
57 9,734,000 58,736 6.0600%
60 9,493,195 60,265 6.5350%
64 8,840,000 IO 5.7150%
65 8,835,000 IO 5.7150%
72 7,840,000 47,692 6.1360%
73 7,740,000 46,107 5.9400%
75 7,494,257 46,399 6.2950%
76 7,250,000 45,777 6.4900%
79 6,800,000 40,159 5.8600%
82 6,550,000 IO 6.2050%
83 6,520,000 39,511 6.1000%
85 5,866,000 IO 6.2050%
88 5,782,000 35,997 6.3550%
92 5,370,672 IO 6.4270%
97 4,840,411 27,990 5.6480%
100 4,479,000 26,338 5.8200%
102 4,400,000 27,384 6.3520%
106 3,850,000 23,918 6.3350%
121 2,677,000 15,741 5.8200%
124 1,087,000 IO 6.2050%
Mortgage Loan Number Remaining Term to Maturity or ARD (Mos.) Maturity Date or ARD
--------------------- ---------------------------------------- --------------------
1 119 07/06/17
14 118 06/06/17
19 60 08/06/12
21 116 04/06/17
23 118 06/06/17
23.01
23.02
23.03
23.04
34 120 08/06/17
36 118 06/06/17
41 116 04/06/17
51 119 07/06/17
52 59 07/06/12
54 119 07/06/17
55 118 06/06/17
57 119 07/06/17
60 119 07/06/17
64 119 07/06/17
65 119 07/06/17
72 118 06/06/17
73 119 07/06/17
75 119 07/06/17
76 119 07/06/17
79 117 05/06/17
82 59 07/06/12
83 119 07/06/17
85 59 07/06/12
88 119 07/06/17
92 119 07/06/17
97 118 06/06/17
100 118 06/06/17
102 120 08/06/17
106 119 07/06/17
121 118 06/06/17
124 59 07/06/12
Mortgage Loan Number Remaining Amort Term (Mos.) for Balloon Mortgage Loan Interest Accrual Method
--------------------- ----------------------------------------------------- -----------------------
1 IO Actual/360
14 IO Actual/360
19 IO Actual/360
21 360 Actual/360
23 360 Actual/360
23.01
23.02
23.03
23.04
34 360 Actual/360
36 360 Actual/360
41 360 Actual/360
51 360 Actual/360
52 IO Actual/360
54 360 Actual/360
55 360 Actual/360
57 360 Actual/360
60 359 Actual/360
64 IO Actual/360
65 IO Actual/360
72 360 Actual/360
73 360 Actual/360
75 359 Actual/360
76 360 Actual/360
79 360 Actual/360
82 IO Actual/360
83 360 Actual/360
85 IO Actual/360
88 360 Actual/360
92 IO Actual/360
97 358 Actual/360
100 360 Actual/360
102 360 Actual/360
106 360 Actual/360
121 360 Actual/360
124 IO Actual/360
Mortgage Loan Number Loan Administrative Cost Rate Master Servicing Fee Rate Ground Lease Mortgage Loan Seller
--------------------- ----------------------------- ------------------------- ------------ --------------------
1 0.0210% 0.0200% N CGMRC
14 0.0410% 0.0400% N CGMRC
19 0.0210% 0.0200% N CGMRC
21 0.0210% 0.0200% N CGMRC
23 0.0410% 0.0400% N CGMRC
23.01 N
23.02 N
23.03 N
23.04 N
34 0.0210% 0.0200% N CGMRC
36 0.0510% 0.0500% N CGMRC
41 0.0210% 0.0200% N CGMRC
51 0.0510% 0.0500% N CGMRC
52 0.0210% 0.0200% N CGMRC
54 0.0210% 0.0200% N CGMRC
55 0.0210% 0.0200% N CGMRC
57 0.0210% 0.0200% N CGMRC
60 0.0510% 0.0500% N CGMRC
64 0.0310% 0.0300% N CGMRC
65 0.0310% 0.0300% N CGMRC
72 0.0210% 0.0200% N CGMRC
73 0.0210% 0.0200% N CGMRC
75 0.0510% 0.0500% N CGMRC
76 0.0210% 0.0200% N CGMRC
79 0.0210% 0.0200% N CGMRC
82 0.0610% 0.0600% N CGMRC
83 0.0210% 0.0200% N CGMRC
85 0.0610% 0.0600% N CGMRC
88 0.0310% 0.0300% N CGMRC
92 0.0210% 0.0200% N CGMRC
97 0.0210% 0.0200% Y CGMRC
100 0.0210% 0.0200% N CGMRC
102 0.0210% 0.0200% N CGMRC
106 0.0210% 0.0200% N CGMRC
121 0.0210% 0.0200% N CGMRC
124 0.0610% 0.0600% N CGMRC
Mortgage Loan Number Originator Defeasance Loan Cross Collateralized and Cross Defaulted Loan Flag
--------------------- ---------- --------------- --------------------------------------------------
1 CGMRC Y N
14 CGMRC Y N
19 CGMRC Y N
21 CGMRC Y N
23 CGMRC N N
23.01
23.02
23.03
23.04
34 CGMRC Y N
36 CGMRC Y N
41 CGMRC Y N
51 CGMRC N N
52 CGMRC Y N
54 CGMRC Y N
55 CGMRC N N
57 CGMRC Y N
60 CGMRC Y N
64 CGMRC Y N
65 CGMRC Y N
72 CGMRC Y N
73 CGMRC Y N
75 CGMRC Y N
76 CGMRC Y N
79 CGMRC Y N
82 CGMRC Y N
83 CGMRC Y N
85 CGMRC Y N
88 CGMRC N N
92 CGMRC Y N
97 CGMRC Y N
100 CGMRC N N
102 CGMRC Y N
106 CGMRC N N
121 CGMRC Y N
124 CGMRC Y N
Mortgage Loan Number Letter of Credit In-Place ARD Loan Anticipated Repayment Date
--------------------- ------------------------- -------- --------------------------
1 N Y 07/06/17
14 N N
19 N N
21 N N
23 N N
23.01
23.02
23.03
23.04
00 X X
00 X X
00 X X
51 N N
52 N N
54 N N
55 N N
57 N N
60 N N
64 N N
65 N N
72 N N
73 N N
75 N N
76 N N
79 N N
82 N N
83 N N
85 N N
88 N N
92 N N
97 N N
100 N N
000 X X
000 X X
000 X Y 06/06/17
124 N N
Mortgage Loan Number If ARD loan, Additional Interest Rate
--------------------- -----------------------------------------------------------------------------
1 Greater of interest rate plus 2% or Treasury Rate plus 3%
14
19
21
23
23.01
23.02
23.03
23.04
34
36
41
51
52
54
55
57
60
64
65
72
73
75
76
79
82
83
85
88
92
97
100
102
106
121 Greater of (i) 2% plus initial interest rate or (ii) 3% plus annualized yield
124
Mortgage Loan Number Serviced Loan Combination?
--------------------- --------------------------
1 N
14 N
19
21 N
23 N
23.01 N
23.02 N
23.03 N
23.04 N
34
36 N
41 N
51
52
54
55 N
57 N
60 N
64 N
65 N
72 N
73 N
75 N
76 N
79 N
82 N
83 N
85 N
88
92 N
97 N
000 X
000 X
106 N
121 N
124 N
EXHIBIT B
Mortgage Loan Representations and Warranties
1. Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2. Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan. Immediately
prior to the transfer to the Purchaser of the Mortgage Loans, the Seller
had good title to, and was the sole owner of, each Mortgage Loan. The
Seller has full right, power and authority to transfer and assign each of
the Mortgage Loans to or at the direction of the Purchaser and has validly
and effectively conveyed (or caused to be conveyed) to the Purchaser or its
designee all of the Seller's legal and beneficial interest in and to the
Mortgage Loans free and clear of any and all pledges, liens, charges,
security interests and/or other encumbrances. The sale of the Mortgage
Loans to the Purchaser or its designee does not require the Seller to
obtain any governmental or regulatory approval or consent that has not been
obtained.
3. Payment Record. No scheduled payment of principal and interest under
any Mortgage Loan was 30 days or more past due as of the Cut-off Date, and
no Mortgage Loan was 30 days or more delinquent in the twelve-month period
immediately preceding the Cut-off Date.
4. Lien; Valid Assignment. None of the matters referred to in clauses
(B), (C) or (D) of the definition of "Permitted Liens" (as defined below),
individually or in the aggregate, materially interferes with the security
intended to be provided by such Mortgage, the marketability or current use
of the Mortgaged Property, or the current ability of the Mortgaged Property
to generate operating income sufficient to service the Mortgage Loan debt.
The related assignment of such Mortgage executed and delivered in favor of
the Trustee is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all
of the assignor's right, title and interest in, to and under such Mortgage.
Such Mortgage, together with any separate security agreements, chattel
mortgages or equivalent instruments, establishes and creates a valid and,
subject to the exceptions set forth in paragraph 13 below, enforceable
security interest in favor of the holder thereof in all of the related
Mortgagor's personal property used in, and reasonably necessary to operate,
the related Mortgaged Property. In the case of a Mortgaged Property
operated as a hotel or an assisted living facility, the Mortgagor's
personal property includes all personal property that a prudent mortgage
lender making a similar Mortgage Loan would deem reasonably necessary to
operate the related Mortgaged Property as it is currently being operated. A
Uniform Commercial Code financing statement has been filed and/or recorded
in all places necessary to perfect a valid security interest in personal
property located on the Mortgaged Property that is owned by the Mortgagor
and either (i) is reasonably necessary to operate the Mortgaged Property or
(ii) is (as indicated in the appraisal obtained in connection with the
origination of the related Mortgage Loan) material to the value of the
Mortgaged Property, to the extent a security interest may be so created
therein, and such security interest is a first priority security interest,
subject to any prior purchase money security interest or a sale and
leaseback financing arrangement in such personal property and any personal
property leases applicable to such personal property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rents or other personal property to the extent that possession
or control of such items or actions other than the filing of Uniform
Commercial Code financing statements are required in order to effect such
perfection.
"Permitted Liens" shall mean, (A) the lien for current real estate taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters that are of public
record and/or are referred to in the related mortgagee's title insurance
policy, (C) exceptions and exclusions specifically referred to in such
mortgagee's title insurance policy, (D) other matters to which like
properties are commonly subject and (E) the lien created through the
cross-collateralization of the subject Mortgage Loan with another Mortgage
Loan.
5. Assignment of Leases and Rents. The Assignment of Leases related to
and delivered in connection with each Mortgage Loan establishes and creates
a valid, subsisting and, subject to the exceptions set forth in paragraph
13 below, enforceable first priority lien and first priority security
interest in the related Mortgagor's interest in all leases, sub-leases,
licenses or other agreements pursuant to which any person is entitled to
occupy, use or possess all or any portion of the real property subject to
the related Mortgage, and each assignor thereunder has the full right to
assign the same. The related assignment of any Assignment of Leases not
included in a Mortgage has been executed and delivered in favor of the
Trustee and is in recordable form and constitutes a legal, valid and
binding assignment, sufficient to convey to the assignee named therein all
of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to this Exhibit B), nor has any
instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment of
Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File since the date upon which the due diligence file related to
the applicable Mortgage Loan was delivered to CWCapital Investments LLC, or
an affiliate.
7. Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of
an engineering report within 18 months prior to the Cut-off Date, each
Mortgaged Property is, to the Seller's knowledge, free and clear of any
damage (or adequate reserves therefor have been established) that would
materially and adversely affect its value as security for the related
Mortgage Loan, and (ii) with respect to the Mortgaged Properties securing
the Mortgage Loans that were not the subject of an engineering report
within 18 months prior to the Cut-off Date as set forth on Schedule B-1 to
this Exhibit B, each Mortgaged Property is in good repair and condition and
all building systems contained therein are in good working order (or
adequate reserves therefor have been established) and each Mortgaged
Property is free of structural defects, in each case, that would materially
and adversely affect its value as security for the related Mortgage Loan as
of the date hereof. The Seller has received no notice of the commencement
of any proceeding for the condemnation of all or any material portion of
any Mortgaged Property. To the Seller's knowledge (based on surveys and/or
title insurance obtained in connection with the origination of the Mortgage
Loans), as of the date of the origination of each Mortgage Loan, all of the
material improvements on the related Mortgaged Property that were
considered in determining the appraised value of the Mortgaged Property lay
wholly within the boundaries and building restriction lines of such
property and do not encroach on any third party easements on the Mortgaged
Property, except for encroachments that are insured against by the
mortgagee's title insurance policy referred to herein or that do not
materially and adversely affect the value or marketability of such
Mortgaged Property, and no improvements on adjoining properties materially
encroached upon such Mortgaged Property so as to materially and adversely
affect the value or marketability of such Mortgaged Property, except those
encroachments that are insured against by the Title Policy referred to
herein.
8. Title Insurance. Each Mortgaged Property is covered by an American
Land Title Association (or an equivalent form of) mortgagee's title
insurance policy or a marked-up title insurance commitment (on which the
required premium has been paid) which evidences such title insurance policy
(the "Title Policy") in the original principal amount of the related
Mortgage Loan after all advances of principal. Each Title Policy insures
that the related Mortgage is a valid first priority lien on such Mortgaged
Property, subject only to Permitted Liens. Each Title Policy (or, if it has
yet to be issued, the coverage to be provided thereby) is in full force and
effect, all premiums thereon have been paid, and no material claims have
been made thereunder and no claims have been paid thereunder. No holder of
the related Mortgage has done, by act or omission, anything that would
materially impair the coverage under such Title Policy. Immediately
following the transfer and assignment of the related Mortgage Loan to the
Trustee, such Title Policy (or, if it has yet to be issued, the coverage to
be provided thereby) will inure to the benefit of the Trustee without the
consent of or notice to the insurer. To the Seller's knowledge, the insurer
issuing such Title Policy is qualified to do business in the jurisdiction
in which the related Mortgaged Property is located.
9. No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements
of any funds escrowed for such purpose that were to have been complied with
on or before the Closing Date have been complied with, or any such funds so
escrowed have not been released.
10. Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11. Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after default
by the related Mortgagor or in connection with any full or partial release
of the related Mortgaged Property or related security for the related
Mortgage Loan.
12. Environmental Conditions.
i) With respect to the Mortgaged Properties securing the Mortgage
Loans that were the subject of an environmental site assessment within
18 months prior to the Cut-off Date, an environmental site assessment
(meeting American Society for Testing and Materials standards), or an
update of a previous such report, was performed with respect to each
Mortgaged Property in connection with the origination or the sale of
the related Mortgage Loan, a report of each such assessment (or the
most recent assessment with respect to each Mortgaged Property) (an
"Environmental Report") has been delivered to the Purchaser, and the
Seller has no knowledge of any material and adverse environmental
condition or circumstance affecting any Mortgaged Property that was not
disclosed in such report. Each Mortgage requires the related Mortgagor
to comply with all applicable federal, state and local environmental
laws and regulations. Where such assessment disclosed the existence of
a material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition or
circumstance, (ii) a party related to the Mortgagor having financial
resources reasonably estimated to be adequate to address the situation
is required to take action, or (iii) environmental insurance covering
such condition was obtained or must be maintained until the condition
is remediated, or (iv) the related Mortgagor was required either to
provide additional security that was deemed to be sufficient by the
originator in light of the circumstances and/or to establish an
operations and maintenance plan. In the case of each Mortgage Loan set
forth on Schedule B-1 to this Exhibit B, (i) such Mortgage Loan is the
subject of a Secured Creditor Impaired Property Policy, issued by the
issuer set forth on Schedule B-1 (the "Policy Issuer") and effective as
of the date thereof (the "Environmental Insurance Policy"), (ii) the
Environmental Insurance Policy is in full force and effect, (iii)(a) a
property condition or engineering report was prepared, if the related
Mortgaged Property was constructed prior to 1985, with respect to
asbestos containing materials ("ACM") and, if the related Mortgaged
Property is a multifamily property, with respect to radon gas ("RG")
and lead based paint ("LBP") and (b) if such report disclosed the
existence of a material and adverse LBP, ACM or RG environmental
condition or circumstance affecting the related Mortgaged Property, the
related Mortgagor (A) was required to remediate the identified
condition prior to closing the Mortgage Loan or provide additional
security or establish with the mortgagee a reserve from loan proceeds,
in an amount deemed to be sufficient by the Seller, for the remediation
of the problem, and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of the
Mortgage Loan, (iv) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any material
and adverse environmental condition or circumstance affecting the
Mortgaged Property (other than the existence of LBP, ACM or RG) that
was not disclosed to the Policy Issuer in one or more of the following:
(a) the application for insurance, (b) a borrower questionnaire that
was provided to the Policy Issuer, or (c) an engineering or other
report provided to the Policy Issuer, and (v) the premium of any
Environmental Insurance Policy has been paid through the maturity of
the policy's term and the term of such policy extends at least five
years beyond the maturity of the Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the Mortgage
Loans that were not the subject of an environmental site assessment
within 18 months prior to the Cut-off Date as set forth on Schedule B-1
to this Exhibit B, (i) no Hazardous Material is present on such
Mortgaged Property such that (1) the value of such Mortgaged Property
is materially and adversely affected or (2) under applicable federal,
state or local law, (a) such Hazardous Material could be required to be
eliminated at a cost materially and adversely affecting the value of
the Mortgaged Property before such Mortgaged Property could be altered,
renovated, demolished or transferred, or (b) the presence of such
Hazardous Material could (upon action by the appropriate governmental
authorities) subject the owner of such Mortgaged Property, or the
holders of a security interest therein, to liability for the cost of
eliminating such Hazardous Material or the hazard created thereby at a
cost materially and adversely affecting the value of the Mortgaged
Property, and (ii) such Mortgaged Property is in material compliance
with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with
such laws does not have a material adverse effect on the value of such
Mortgaged Property, and neither Seller nor, to Seller's knowledge, the
related Mortgagor or any current tenant thereon, has received any
notice of violation or potential violation of any such law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or related
or similar materials and any other substance or material as may be
defined as a hazardous or toxic substance by any federal, state or
local environmental law ordinance, rule, regulation or order, including
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. xx.xx.
9601 et seq.), the Hazardous Materials Transportation Act as amended
(42 U.S.C. xx.xx. 6901 et seq.), the Federal Water Pollution Control
Act as amended (33 U.S.C. xx.xx. 1251 et seq.), the Clean Air Act (42
U.S.C. xx.xx. 1251 et seq.) and any regulations promulgated pursuant
thereto.
13. Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense, counterclaim
or right of offset or rescission available to the related Mortgagor with
respect to such Mortgage Note, Mortgage or other agreement.
14. Insurance. Each Mortgaged Property is, and is required pursuant to
the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent
with its normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality of the
Mortgaged Property in an amount not less than the lesser of the principal
balance of the related Mortgage Loan and the replacement cost of the
Mortgaged Property, and contains no provisions for a deduction for
depreciation, and not less than the amount necessary to avoid the operation
of any co-insurance provisions with respect to the Mortgaged Property; (b)
a business interruption or rental loss insurance policy, in an amount at
least equal to six months of operations of the Mortgaged Property; (c) a
flood insurance policy (if any portion of buildings or other structures on
the Mortgaged Property are located in an area identified by the Federal
Emergency Management Agency as having special flood hazards and the Federal
Emergency Management Agency requires flood insurance to be maintained); (d)
a comprehensive general liability insurance policy in amounts as are
generally required by commercial mortgage lenders, and in any event not
less than $1 million per occurrence; and (e) if the Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina, windstorm
insurance in an amount at least equal to the lesser of (i) the outstanding
principal balance of such Mortgage Loan and (ii) 100% of the full insurable
value, or 100% of the replacement cost, of the improvements located on the
related Mortgaged Property. An architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties located in
seismic zone 3 or 4 in order to evaluate the structural and seismic
condition of such property, for the sole purpose of assessing the probable
maximum loss ("PML") for the Mortgaged Property in the event of an
earthquake. In such instance, the PML was based on a 475-year lookback with
a 10% probability of exceedance in a 50-year period. If a seismic report
concluded that the PML on a Mortgaged Property would exceed 20% of the
amount of the replacement costs of the improvements, earthquake insurance
by an insurer rated at least "A-:V" (or the equivalent) by A.M. Best
Company or "BBB-" (or the equivalent) from S&P or Fitch. Such insurance
policy contains a standard mortgagee clause that names the mortgagee as an
additional insured in the case of liability insurance policies and as a
loss payee in the case of property insurance policies and requires prior
notice to the holder of the Mortgage of termination or cancellation. No
such notice has been received, including any notice of nonpayment of
premiums, that has not been cured. Each Mortgage obligates the related
Mortgagor to maintain all such insurance and, upon such Mortgagor's failure
to do so, authorizes the holder of the Mortgage to maintain such insurance
at the Mortgagor's cost and expense and to seek reimbursement therefor from
such Mortgagor. Each Mortgage provides that casualty insurance proceeds
will be applied (a) to the restoration or repair of the related Mortgaged
Property, (b) to the restoration or repair of the related Mortgaged
Property, with any excess insurance proceeds after restoration or repair
being paid to the Mortgagor, or (c) to the reduction of the principal
amount of the Mortgage Loan.
15. Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first payable
thereon.
16. Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17. Leasehold Estate. Each Mortgaged Property consists of a fee simple
estate in real estate or, if the related Mortgage Loan is secured in whole
or in part by the interest of a Mortgagor as a lessee under a ground lease
of a Mortgaged Property (a "Ground Lease"), by the related Mortgagor's
interest in the Ground Lease but not by the related fee interest in such
Mortgaged Property (the "Fee Interest"), and as to such Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease (or the related estoppel letter or
lender protection agreement between the Seller and related lessor) does
not prohibit the current use of the Mortgaged Property and does not
prohibit the interest of the lessee thereunder to be encumbered by the
related Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected in
written instruments that are a part of the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject to
any liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Liens;
iii) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Closing Date) and, in the
event that it is so assigned, is further assignable by the Purchaser
and its successors and assigns upon notice to, but without the need to
obtain the consent of, such lessor or if such lessor's consent is
required it cannot be unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the Ground
Lease provides that no material amendment to such Ground Lease is
binding on a mortgagee unless the mortgagee has consented thereto, and
the Seller has received no notice that an event of default has occurred
thereunder, and, to the Seller's knowledge, there exists no condition
that, but for the passage of time or the giving of notice, or both,
would result in an event of default under the terms of such Ground
Lease;
v) Such Ground Lease or an estoppel letter or other agreement, (A)
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the holder of the Mortgage; and (B) provides
that no notice of termination given under such Ground Lease is
effective against the holder of the Mortgage unless a copy of such
notice has been delivered to such holder and the lessor has offered or
is required to enter into a new lease with such holder on terms that do
not materially vary from the economic terms of the Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of
the lessee under such Ground Lease) to cure any default under such
Ground Lease, which is curable after the receipt of notice of any such
default, before the lessor thereunder may terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than twenty
years beyond the Stated Maturity Date of the related Mortgage Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease interest
will be applied either (A) to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed by the related Mortgage having the right to hold and disburse
such proceeds as the repair or restoration progresses (except in such
cases where a provision entitling a third party to hold and disburse
such proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or (B) to the payment of the
outstanding principal balance of the Mortgage Loan together with any
accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is located;
and such Ground Lease contains a covenant that the lessor thereunder is
not permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of the lessee thereunder for
any reason, or in any manner, which would materially adversely affect
the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new lease
upon termination of such Ground Lease or if such Ground Lease is
rejected in a bankruptcy proceeding.
18. Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19. Escrow Deposits. All escrow deposits and payments relating to each
Mortgage Loan that are, as of the Closing Date, required to be deposited or
paid have been so deposited or paid.
20. Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required by
such Mortgage Loan.
21. No Mechanics' Liens. Each Mortgaged Property is free and clear of
any and all mechanics' and materialmen's liens that are prior or equal to
the lien of the related Mortgage, and no rights are outstanding that under
law could give rise to any such lien that would be prior or equal to the
lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22. Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23. Cross-collateralization. Except as set forth on Schedule B-1 to
this Exhibit B, no Mortgage Loan is cross-collateralized or cross-defaulted
with any loan other than one or more other Mortgage Loans.
24. Releases of Mortgaged Property. Since origination, no material
portion of the related Mortgaged Property has been released from the lien
of the related Mortgage, in any manner which materially and adversely
affects the value of the Mortgage Loan or materially interferes with the
security intended to be provided by such Mortgage. The terms of the related
Mortgage or related Mortgage Loan documents do not provide for release of
any material portion of the Mortgaged Property from the lien of the
Mortgage except (a) in consideration of payment therefor of not less than
125% of the related allocated loan amount of such Mortgaged Property, (b)
upon payment in full of such Mortgage Loan, (c) upon defeasance permitted
under the terms of such Mortgage Loan by means of substituting for the
Mortgaged Property (or, in the case of a Mortgage Loan secured by multiple
Mortgaged Properties, one or more of such Mortgaged Properties) "government
securities", as defined in the Investment Company Act of 1940, as amended,
sufficient to pay the Mortgage Loan in accordance with its terms, (d) upon
substitution of a replacement property with respect to such Mortgage Loan
as set forth on Schedule B-1 hereto, (e) where release is conditional upon
the satisfaction of certain objective underwriting and legal requirements,
the satisfaction of which would be acceptable to a reasonably prudent
commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property
or (f) releases of unimproved out-parcels or other portions of the
Mortgaged Property which will not have a material adverse effect on the
underwritten value of the security for the Mortgage Loan and which were not
afforded any value in the appraisal obtained at the origination of the
Mortgage Loan.
25. No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the mortgagee or provides for negative
amortization (except that the ARD Loan may provide for the accrual of
interest at an increased rate after the Anticipated Repayment Date) or for
any contingent or additional interest in the form of participation in the
cash flow of the related Mortgaged Property.
26. No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the documents
evidencing or securing the Mortgage Loan, in any such case to the extent
the same materially and adversely affects the value of the Mortgage Loan
and the related Mortgaged Property; provided, however, that this
representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in this Exhibit B.
27. Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of the
related Mortgage Loan.
28. Local Law Compliance. Based on due diligence considered reasonable
by prudent commercial mortgage lenders in the lending area where the
Mortgaged Property is located, the improvements located on or forming part
of each Mortgaged Property comply with applicable zoning laws and
ordinances, or constitute a legal non-conforming use or structure or, if
any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
29. Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Lien) junior to or of equal priority with the lien of the related Mortgage
without the prior written consent of the holder thereof or the satisfaction
of debt service coverage or similar criteria specified therein. The Seller
has no knowledge that any of the Mortgaged Properties is encumbered by any
lien junior to the lien of the related Mortgage.
30. Actions Concerning Mortgage Loans. To the knowledge of the Seller,
there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan, Mortgagor
or related Mortgaged Property that might adversely affect title to the
Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
31. Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
32. Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated.
33. Assisted Living Facility Regulation. If the Mortgaged Property is
operated as an assisted living facility, to the Seller's knowledge (a) the
related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for participation
in such programs.
34. Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to the
Purchaser.
35. Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
36. Single Purpose Entity. Each Mortgage Loan with a Cut-off Date
Principal Balance in excess of $5 million requires the Mortgagor to be for
at least as long as the Mortgage Loan is outstanding and, to the Seller's
knowledge, each such Mortgagor is, a Single Purpose Entity, the
organizational documents of the Mortgagor with respect to each Mortgage
Loan with a Cut-off Date Principal Balance in excess of $15 million provide
that the Mortgagor is a Single Purpose Entity and each Mortgage Loan with a
Cut-off Date Principal Balance of $20 million or more has a counsel's
opinion regarding non-consolidation of the Mortgagor in any insolvency
proceeding involving any other party. For this purpose, a "Single Purpose
Entity" shall mean an entity, other than an individual, whose
organizational documents (or if the Mortgage Loan has a Cut-off Date
Principal Balance equal to $15 million or less, its organizational
documents or Mortgage Loan documents) provide substantially to the effect
that it was formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and prohibit it from engaging in any business unrelated to such
Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such Mortgaged
Property or Properties, or any indebtedness other than as permitted by the
related Mortgage(s) or the other related Mortgage Loan documents, that it
has its own books and records and accounts separate and apart from any
other person (other than a Mortgagor for a Mortgage Loan that is
cross-collateralized and cross-defaulted with the related Mortgage Loan),
and that it holds itself out as a legal entity, separate and apart from any
other person.
37. Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the non-recourse
obligations of the related Mortgagor, provided that at least one natural
person (and the Mortgagor if the Mortgagor is not a natural person) is
liable to the holder of the Mortgage Loan for damages arising in the case
of fraud or willful misrepresentation by the Mortgagor, misappropriation of
rents, insurance proceeds, or condemnation awards and breaches of the
environmental covenants in the Mortgage Loan documents.
38. Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the mortgagee incurred in
connection with the defeasance of such Mortgage Loan and the release of the
related Mortgaged Property, and the borrower is required to pay all
reasonable costs and expenses of the mortgagee associated with the approval
of an assumption of such Mortgage Loan.
39. Defeasance. No Mortgage Loan provides that it can be defeased until
the date that is more than two years after the Closing Date or provides
that it can be defeased with any property other than government securities
(as defined in Section 2(a)(16) of the Investment Company Act of 1940, as
amended) or any direct non-callable security issued or guaranteed as to
principal or interest by the United States.
40. Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41. Utilities. Each Mortgaged Property is served by public utilities,
water and sewer (or septic facilities) and otherwise appropriate for the
use in which the Mortgaged Property is currently being utilized.
42. Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan has
been serviced, and each provision of the related REMIC declaration has been
complied with in a manner such that the single asset REMIC has not failed
to qualify as a REMIC for federal income tax purposes at any time since the
Startup Day.
43. Separate Tax Lots. Each related Mortgaged Property constitutes one
or more complete separate tax lots (or the related Mortgagor has covenanted
to obtain separate tax lots and a Person has indemnified the mortgagee for
any loss suffered in connection therewith or an escrow of funds in an
amount sufficient to pay taxes resulting from a breach thereof has been
established) or is subject to an endorsement under the related title
insurance policy.
44. No Fraud. In the origination and servicing of the Mortgage Loan,
neither the Seller nor any prior holder of the Mortgage Loan participated
in any fraud or intentional material misrepresentation with respect to the
Mortgage Loan. To Seller's knowledge, no Mortgagor or guarantor originated
a Mortgage Loan.
For purposes of these representations and warranties, the phrases "to
the knowledge of the Seller" or "to the Seller's knowledge" shall mean (except
where otherwise expressly set forth below) the actual state of knowledge of the
Seller (i) after the Seller's having conducted such inquiry and due diligence
into such matters as would be customarily performed by prudent institutional
commercial or multifamily, as applicable, mortgage lenders, and in all events as
required by the Seller's underwriting standards, at the time of the Seller's
origination or acquisition of the particular Mortgage Loan; and (ii) subsequent
to such origination, utilizing the monitoring practices customarily utilized by
prudent commercial or multifamily, as applicable, mortgage lenders with respect
to securitizable commercial or multifamily, as applicable, mortgage loans,
including knowledge of a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, mortgagee's title policy and any letters of credit or Ground Leases,
if such document is not included in the Mortgage File, the Seller shall make
such representation or warranty without any such qualification. Wherever there
is a reference in a representation or warranty to receipt by, or possession of,
the Seller of any information or documents, or to any action taken by the Seller
or to any action which has not been taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, the Seller. For purposes of these representations and warranties,
when referring to the conduct of "reasonable prudent institutional commercial or
multifamily, as applicable mortgage lenders" (or similar such phrases and
terms), such conduct shall be measured by reference to the industry standards
generally in effect as of the date the related representation or warranty
relates to or is made.
It is understood and agreed that the representations and warranties set
forth in this Exhibit B shall survive delivery of the respective Mortgage Files
to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive or
qualified endorsement or assignment.
Schedule B-1
(a) Mortgage Loans Permitting Property Substitutions.
None.
(b) Mortgage Loans with no Engineering Report within 18 Months prior to the
Cut-off Date.
None.
(c) Mortgage Loans with no Environmental Assessment within 18 Months prior to
the Cut-off Date.
None.
(d) Mortgage Loans with Secured Creditor Impaired Property Policy.
None.
(e) Mortgage Loans for which the related Mortgaged Property has been subjected
to partial releases of real property.
None.
(f) Cross-collateralized / crossed-out.
None.
EXHIBIT C
Exceptions to Representations for Citigroup Loans
Exceptions to Representations for Citigroup Loans
Schedule III
Representation #2
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Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
1 Xxxxxxx River Plaza North With respect to the loan listed to the
left, the loan is evidenced by two
pari passu notes and one subordinate
note, which notes are all secured by
the same mortgage instrument
encumbering the Xxxxxxx River Plaza
North loan. Only one of the pari passu
notes is included in the 2007 COBALT -
C3 securitization transaction. The
pari passu notes are pro rata and are
senior to the subordinate companion
note.
--------------------------------------------------------------------------------
19 The Encino Courtyard With respect to the loan listed to the
left, the loan is evidenced by one
senior note and one subordinate note,
which notes are each secured by the
same mortgage instrument encumbering
The Encino Courtyard loan. Only the
senior note is included in the 2007
COBALT - C3 securitization.
--------------------------------------------------------------------------------
Representation #4
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
1 Xxxxxxx River Plaza North With respect to the loan listed to the
left, the loan is evidenced by two
pari passu notes and one subordinate
note, which notes are all secured by
the same mortgage instrument
encumbering the Xxxxxxx River Plaza
North loan. Only one of the pari passu
notes is included in the 2007 COBALT -
C3 securitization transaction. The
pari passu notes are pro rata and are
senior to the subordinate companion
note.
--------------------------------------------------------------------------------
19 The Encino Courtyard With respect to the loan listed to the
left, the loan is evidenced by one
senior note and one subordinate note,
which notes are each secured by the
same mortgage instrument encumbering
The Encino Courtyard loan. Only the
senior note is included in the 2007
COBALT - C3 securitization.
--------------------------------------------------------------------------------
Representation #16
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
All Loans With respect to all the loans in the
2007 COBALT C3 securitization, Seller
makes no representation regarding the
bankruptcy or insolvency of any tenant
at the Mortgaged Property.
--------------------------------------------------------------------------------
Representation #24
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
55 GE Distribution Center - With respect to the loan listed to the
Portland, TN left, the related loan documents
provide for the release of an
unimproved portion of the mortgaged
property (after such portion has been
legally subdivided from the improved
portion) upon a sale of such property
to a bona fide third party purchaser,
subject to the satisfaction of certain
conditions, including among others,
that (i) no event of default has
occurred and is continuing, (ii) the
borrower delivers to the lender
evidence which would be satisfactory
to a prudent lender acting reasonably
that (A) the parcel to be released
(the "Release Parcel") has been
legally subdivided from the remainder
of the property; and (B) after giving
effect to such release, each of the
Release Parcel and the balance of the
property conforms to and is in
compliance in all material respects
with applicable legal requirements;
(iii) the release would not reasonably
be expected to materially adversely
affect the remaining property; (iv)
the borrower shall modify any
applicable lease to cover only the
remaining property; and (v) the
borrower delivers to the lender any
other information, approvals and
documents which would be required by a
prudent lender acting reasonably
relating to the release.
--------------------------------------------------------------------------------
Representation #35
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
All Loans The related Mortgage Loan Documents
generally permit one or more of the
following types of transfers: (a)
transfers of ownership interests in the
related borrower, to a person or
persons affiliated with or otherwise
related to the borrower; (b) transfers
by the borrower of the corresponding
mortgaged property, or transfers of
ownership interests in the related
borrower, to specified entities or
types of entities; (c) issuance by the
borrower of new partnership or
membership interests; (d) changes in
ownership between existing
shareholders, partners, members or to
their respective affiliates, as
applicable, of the related borrower;
(e) a transfer of non-controlling
ownership interests in the related
borrower; (f) transfers of interests in
the related borrower for estate
planning purposes or otherwise upon the
death or disability of a principal; (g)
transfers of undeveloped land or
certain portions of the related
mortgaged property not considered
material in underwriting such mortgage
loan; (h) transfers and pledges of
direct or indirect equity interests in
borrower to specified entities or types
of entities; or (i) other transfers
similar in nature to the foregoing.
--------------------------------------------------------------------------------
Representation #36
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
23 Chant Portfolio - Pool 2 With respect to the loan listed to the
left, no counsel's opinion regarding
non-consolidation of the Mortgagor in
any insolvency proceeding involving any
other party was obtained.
--------------------------------------------------------------------------------
Representation #37
--------------------------------------------------------------------------------
Loan
Number Loan Name Description of Exception
--------------------------------------------------------------------------------
All Loans Mortgage loans in many or all cases
provide for recourse liability to the
borrower and/or other guarantors or
indemnitors other than the borrower for
matters and/or under circumstances
which are in addition to those
items specified in representation
number 37.
--------------------------------------------------------------------------------
