EXHIBIT 4.2
EXECUTION COPY
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
(Depositor)
and
COLUMN FINANCIAL, INC.
(Seller)
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MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of November 1, 2005
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TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Depositor's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Crossed Mortgage Loans..........................................
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance......................................................
Section 10. Representations and Warranties of Depositor.....................
Section 11. Survival of Certain Representations, Warranties and Covenants...
Section 12. Transaction Expenses............................................
Section 13. Recording Costs and Expenses....................................
Section 14. Notices.........................................................
Section 15. Examination of Mortgage Files...................................
Section 16. Successors......................................................
Section 17. Governing Law...................................................
Section 18. Severability....................................................
Section 19. Further Assurances..............................................
Section 20. Counterparts....................................................
Section 21. Treatment as Security Agreement.................................
Section 22. Recordation of Agreement........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule for Column Loans
Schedule III Mortgage Loans Constituting Mortgage Groups
Schedule IV Mortgage Loans with Lost Mortgage Notes
Schedule V Exceptions with Respect to Seller's Representations and Warranties
Exhibit A Representations and Warranties of Seller Regarding the Mortgage
Loans
Exhibit B NCB, FSB Mortgage Loan Purchase Agreement
Exhibit C National Consumer Cooperative Bank Mortgage Loan Purchase
Agreement
Exhibit D Form of Lost Mortgage Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of November 1, 2005, is made by and between COLUMN FINANCIAL, INC., a Delaware
corporation ("Seller"), and CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., a Delaware corporation ("Depositor").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference, or, if not
defined therein or elsewhere in this Agreement, in the Pooling and Servicing
Agreement.
II. On September 30, 2005, Seller purchased the NCB/Column Mortgage
Loans. In connection with such purchase, NCB, FSB and National Consumer
Cooperative Bank each entered into a Mortgage Loan Purchase Agreement with
Seller (the "NCB Mortgage Loan Purchase Agreements"), attached hereto as Exhibit
B and Exhibit C, respectively. Sellers bears no liability and makes no
representation or warranty with respect to the NCB/Column Mortgage Loans. Any
breach of representations and warranties contained in the NCB Mortgage Loan
Purchase Agreements shall be fully recourse only against the breaching seller
under the applicable NCB Mortgage Loan Purchase Agreement.
III. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Depositor and Depositor has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Depositor intends to deposit the Mortgage
Loans and other assets into a trust fund (the "Trust Fund") created pursuant to
the Pooling and Servicing Agreement and to cause the issuance of the
Certificates.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Depositor and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Xxxxx
Fargo Bank, N.A. as trustee (the "Trustee") or its designee, against receipt by
Seller of a trust receipt, pursuant to an arrangement between Seller and the
Trustee; provided, however, that item (p) in the definition of Mortgage File
(below) shall be delivered to the applicable Master Servicer for inclusion in
the Servicer File (defined below) with a copy delivered to the Trustee for
inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date, subject to and simultaneously with the
deposit of the Mortgage Loans into the Trust Fund, the issuance of the
Certificates and the sale of (a) the Publicly Offered Certificates by Depositor
to the Underwriters pursuant to the Underwriting Agreement and (b) the Private
Certificates by Depositor to the Initial Purchaser pursuant to the Certificate
Purchase Agreement. The closing (the "Closing") shall take place at the offices
of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or such other location as agreed upon between the parties hereto. On
the Closing Date, the following actions shall take place in sequential order on
the terms set forth herein:
(i) Seller shall sell to Depositor, and Depositor shall
purchase from Seller, the Mortgage Loans pursuant to this Agreement for
the Mortgage Loan Purchase Price (as defined herein). The Mortgage Loan
Purchase Price shall be paid by Depositor to Seller or at its direction
by wire transfer in immediately available funds to an account
designated by Seller on or prior to the Closing Date (or, by such other
method as shall be mutually acceptable to Depositor and Seller). The
"Mortgage Loan Purchase Price" paid by Depositor shall be equal to the
amount that the Depositor and the Seller have mutually agreed upon as
the Seller's share of the net securitization proceeds from the sale of
the Publicly Offered Certificates and the Private Certificates as set
forth in the Closing Statement (which amount includes, without
limitation, accrued interest).
(ii) Pursuant to the terms of the Pooling and Servicing
Agreement, Depositor shall sell all of its right, title and interest in
and to the Mortgage Loans to the Trustee for the benefit of the Holders
of the Certificates.
(iii) Depositor shall sell to the Underwriters, and the
Underwriters shall purchase from Depositor, the Publicly Offered
Certificates pursuant to the Underwriting Agreement, and Depositor
shall sell to the Initial Purchaser, and the Initial Purchaser shall
purchase from Depositor, the Private Certificates pursuant to the
Certificate Purchase Agreement.
(iv) The Underwriters will offer the Publicly Offered
Certificates for sale to the public pursuant to the Prospectus and the
Prospectus Supplement and the Initial Purchaser will privately place
certain classes of the Private Certificates pursuant to the Offering
Circular.
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer, subject to any related servicing rights
of any applicable Master Servicer under, and/or any applicable Primary Servicer
contemplated by, the Pooling and Servicing Agreement, without recourse except as
provided herein, to Depositor, free and clear of any liens, claims or other
encumbrances, all of Seller's right, title and interest in, to and under: (i)
each of the Mortgage Loans identified on the Mortgage Loan Schedule, (ii) each
of the NCB Mortgage Loan Purchase Agreements, including without limitation, an
assignment of the representations and warranties made by each seller under such
agreements and the benefit of, and the right to enforce, all remedies set forth
in such agreements against the related seller and (iii) all property of Seller
described in Section 21(b) of this Agreement, including, without limitation, (A)
all scheduled payments of interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date and (B) all other payments of interest,
principal or yield maintenance charges received on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal or yield maintenance charges that were due on or prior to the
Cut-off Date. The Mortgage File for each Mortgage Loan shall contain the
following documents on a collective basis:
(a) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially in the form
of Exhibit D hereto and a true and complete copy of the Note), bearing, or
accompanied by, all prior and intervening endorsements, assignments or allonges
showing a complete chain of endorsement or assignment from the Mortgage Loan
Originator either in blank or to Seller, and further endorsed (at the direction
of Depositor given pursuant to this Agreement) by Seller, on its face or by
allonge attached thereto, without recourse, either in blank or to the order of
the Trustee in the following form: "Pay to the order of Xxxxx Fargo Bank, N.A.,
as trustee for the registered Holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
without recourse, representation or warranty, express or implied";
(b) a duplicate original Mortgage or a counterpart thereof or, if
such Mortgage has been returned by the related recording office, (A) an
original, (B) a certified copy or (C) a copy thereof from the applicable
recording office, and originals or counterparts (or originals or copies of
certified copies from the applicable recording office) of any intervening
assignments thereof from the Mortgage Loan Originator to Seller, in each case in
the form submitted for recording or, if recorded, with evidence of recording
indicated thereon;
(c) an original assignment of the Mortgage, in recordable form
(except for any missing recording information and, if applicable, completion of
the name of the assignee), from Seller (or the Mortgage Loan Originator) either
in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2005-C5";
(d) an original, counterpart or copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), and the
originals, counterparts or copies of any intervening assignments thereof from
the Mortgage Loan Originator of the Loan to Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording thereon;
(e) an original assignment of any related Assignment of Leases (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), in recordable form (except for any
missing recording information and, if applicable, completion of the name of the
assignee), from Seller (or the Mortgage Loan Originator), either in blank or to
"Xxxxx Fargo Bank, N.A., as trustee for the registered Holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2005-C5";
(f) an original or true and complete copy of any related Security
Agreement (if such item is a document separate from the Mortgage), and the
originals or copies of any intervening assignments thereof from the Mortgage
Loan Originator to Seller;
(g) an original assignment of any related Security Agreement (if
such item is a document separate from the Mortgage and to the extent not already
assigned pursuant to clause (c) above), from Seller (or the Mortgage Loan
Originator) either in blank or to "Xxxxx Fargo Bank, N.A., as trustee for the
registered Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2005-C5," which assignment
may be included as part of an omnibus assignment covering other documents
relating to the Mortgage Loan (provided that such omnibus assignment is
effective under applicable law);
(h) originals or copies of all (A) assumption agreements, (B)
modifications, (C) written assurance agreements and (D) substitution agreements,
together with any evidence of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the Mortgage,
Note or any related security document have been modified or the Mortgage Loan
has been assumed;
(i) the original lender's title insurance policy or a copy thereof
(together with all endorsements or riders that were issued with or subsequent to
the issuance of such policy), or if the policy has not yet been issued, the
original or a copy of a binding written commitment (which may be a pro forma or
specimen title insurance policy which has been accepted or approved in writing
by the related title insurance company) or interim binder that is marked as
binding and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating to such
Mortgage Loan;
(j) the original or a counterpart of any guaranty of the obligations
of the Borrower under the Mortgage Loan;
(k) UCC acknowledgement, certified or other copies of all UCC
Financing Statements and continuation statements which show the filing or
recording thereof (including the filing number or other similar filing
information) or, alternatively, other evidence of filing or recording (including
the filing number or other similar filing information) acceptable to the Trustee
(including, without limitation, evidence of such filed or recorded UCC Financing
Statement as shown on a written UCC search report from a reputable search firm,
such as Corporation Service Company, CT Corporation System and the like or
printouts of on-line confirmations from such UCC filing or recording offices or
authorized agents thereof), sufficient to perfect (and maintain the perfection
of) the security interest held by the Mortgage Loan Originator (and each
assignee of record prior to the Trustee) in and to the personalty of the
Borrower at the Mortgaged Property, and original UCC Financing Statement
assignments, in a form suitable for filing or recording, sufficient to assign
each such UCC Financing Statement to the Trustee;
(l) the original or copy of the power of attorney (with evidence of
recording thereon) granted by the Borrower if the Mortgage, Note or other
document or instrument referred to above was not signed by the Borrower;
(m) with respect to any debt of a Borrower permitted under the
related Mortgage Loan, an original or copy of a subordination agreement,
standstill agreement or other intercreditor, co-lender or similar agreement
relating to such other debt, if any, including any mezzanine loan documents or
preferred equity documents, and a copy of the promissory note relating to such
other debt (if such other debt is also secured by the related Mortgage);
(n) with respect to any Cash Collateral Accounts and Lock-Box
Accounts, an original or copy of any related account control agreement;
(o) an original or copy of any related Loan Agreement (if separate
from the related Mortgage), and an original or copy of any related Lock-Box
Agreement or Cash Collateral Account Agreement (if separate from the related
Mortgage and Loan Agreement);
(p) the originals and copies of letters of credit, if any, relating
to the Mortgage Loans and amendments thereto which entitles the Trust to draw
thereon; provided that in connection with the delivery of the Mortgage File to
the Trust, such originals shall be delivered to the applicable Master Servicer
and copies thereof shall be delivered to the Trustee;
(q) any related environmental insurance policies and any
environmental guarantees or indemnity agreements or copies thereof;
(r) the original or a copy of the ground lease, ground lease
memorandum and ground lease estoppels, if any, and any originals or copies of
amendments, modifications or extensions thereto, if any;
(s) the original or copy of any property management agreement;
(t) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and any applicable transfer/assignment
documents;
(u) a checklist of the documents included in the subject Mortgage
File;
(v) if applicable, the original or a counterpart of any post-closing
agreement relating to any modification, waiver or amendment of any term of any
Mortgage Loan (including fees charged the Borrower) required to be added to the
Mortgage File pursuant to Section 3.20(l) of the Pooling and Servicing
Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above and with
evidence of recording or filing thereon on the Closing Date, solely because of a
delay caused by the public recording or filing office where such document or
instrument has been delivered for recordation or filing, then the Seller: (i)
shall deliver, or cause to be delivered, to the Trustee or its designee a
duplicate original or true copy of such document or instrument certified by the
applicable public recording or filing office, the applicable title insurance
company or Seller to be a true and complete duplicate original or copy of the
original thereof submitted for recording or filing; and (ii) shall deliver, or
cause to be delivered, to the Trustee or its designee either the original of
such non-delivered document or instrument, or a photocopy thereof (certified by
the appropriate public recording or filing office to be a true and complete copy
of the original thereof submitted for recording or filing), with evidence of
recording or filing thereon (with a copy to the applicable Master Servicer),
within 120 days of the Closing Date, which period may be extended up to two
times, in each case for an additional period of 45 days (provided that Seller,
as certified in writing to the Trustee prior to each such 45-day extension, is
in good faith attempting to obtain from the appropriate county recorder's office
such original or photocopy). Compliance with this paragraph will satisfy
Seller's delivery requirements under this Section 3 with respect to the subject
document(s) and instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (b), (d), (h), (k)
(other than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement), (1) and (n) (other
than assignments of UCC Financing Statements to be recorded or filed in
accordance with the transfer contemplated by this Agreement) above with evidence
of recording or filing thereon for any other reason, including without
limitation, that such non-delivered document or instrument has been lost, the
delivery requirements of this Agreement shall be deemed to have been satisfied
and such non-delivered document or instrument shall be deemed to have been
included in the related Mortgage File if a photocopy of such non-delivered
document or instrument (with evidence of recording or filing thereon and
certified by the appropriate recording or filing office to be a true and
complete copy of the original thereof as filed or recorded) is delivered to the
Trustee (with a copy to the applicable Master Servicer) on or before the Closing
Date.
Notwithstanding the foregoing, in the event that Seller cannot
deliver any UCC Financing Statement assignment with the filing or recording
information of the related UCC Financing Statement with respect to any Mortgage
Loan, solely because such UCC Financing Statement has not been returned by the
public filing or recording office where such UCC Financing Statement has been
delivered for filing or recording, Seller shall so notify the Trustee and shall
not be in breach of its obligations with respect to such delivery, provided that
Seller promptly forwards such UCC Financing Statement to the Trustee (with a
copy to the applicable Master Servicer) upon its return, together with the
related original UCC Financing Statement assignment in a form appropriate for
filing or recording.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC Financing
Statements to the Trustee to be delivered pursuant to clauses (c), (e), (k), and
(n) above (collectively, the "Assignments"), to submit those Assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver those Assignments to the Trustee (with a copy
to the applicable Master Servicer) or its designee as those Assignments (or
certified copies thereof) are received from the applicable filing and recording
offices with evidence of such filing or recording indicated thereon. However, in
the event Seller engages a third-party contractor as contemplated in the
immediately preceding sentence, the rights, duties and obligations of Seller
pursuant to this Agreement remain binding on Seller; and, if Seller does not
engage a third party as contemplated by the immediately preceding sentence, then
Seller will still be liable for recording and filing fees and expenses of the
Assignments as and to the extent contemplated by Section 13 hereof.
Within ten (10) Business Days after the Closing Date, Seller shall
deliver the Servicer Files with respect to each of the Mortgage Loans to the
applicable Master Servicer (or, if applicable, to a Sub-Servicer (with a copy to
the applicable Master Servicer) at the direction of the applicable Master
Servicer), under the Pooling and Servicing Agreement on behalf of the Trustee in
trust for the benefit of the Certificateholders. Each such Servicer File shall
contain all documents and records in Seller's possession relating to such
applicable Mortgage Loans (including reserve and escrow agreements, cash
management agreements, lockbox agreements, rent rolls, leases, environmental and
engineering reports, third-party underwriting reports, appraisals, surveys,
legal opinions, estoppels, financial statements, operating statements and any
other information provided by the respective Borrower from time to time, but
excluding any draft documents, attorney/client communications, which are
privileged or constitute legal or other due diligence analyses, and documents
prepared by Seller or any of its Affiliates solely for internal communication,
credit underwriting or due diligence analyses (other than the underwriting
information contained in the related underwriting memorandum or asset summary
report prepared by the Seller in connection with the preparation of Exhibit A-1
to the Prospectus Supplement)) that are not required to be a part of a Mortgage
File in accordance with the definition thereof, together with copies of all
instruments and documents which are required to be a part of the related
Mortgage File in accordance with the definition thereof.
In addition, with respect to each Mortgage Loan as to which any
Additional Collateral is in the form of a letter of credit as of the Closing
Date, the Seller (within 30 days after the Closing Date) shall cause to be
prepared, executed and delivered to the issuer of each such letter of credit
such notices, assignments and acknowledgements as are required under such letter
of credit to assign, without recourse, to, and vest in, the Trustee (in care of
the applicable Master Servicer) (whether by actual assignment or by amendment of
the letter of credit) the Seller's rights as the beneficiary thereof and drawing
party thereunder. The designated beneficiary under each letter of credit
referred to in the preceding sentence shall be the Trustee (in care of the
applicable Master Servicer).
For purposes of this Section 3, and notwithstanding any contrary
provision hereof or of the definition of "Mortgage File," if there exists with
respect to any group of Crossed Mortgage Loans only one original or certified
copy of any document or instrument described in the definition of "Mortgage
File" which pertains to all of the Crossed Mortgage Loans in such group of
Crossed Mortgage Loans, the inclusion of the original or certified copy of such
document or instrument in the Mortgage File for any of such Crossed Mortgage
Loans and the inclusion of a copy of such original or certified copy in each of
the Mortgage Files for the other Crossed Mortgage Loans in such group of Crossed
Mortgage Loans, shall be deemed the inclusion of such original or certified
copy, as the case may be, in the Mortgage File for each such Crossed Mortgage
Loan.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the applicable Master Servicer (or, if applicable, to a Sub-Servicer at the
direction of the applicable Master Servicer) for deposit into Servicing
Accounts.
The Trustee, as assignee or transferee of Depositor, shall be
entitled to all scheduled principal payments due after the Cut-off Date, all
other payments of principal due and collected after the Cut-off Date, and all
payments of interest on the Mortgage Loans, minus that portion of any such
payment which is allocable to the period on or prior to the Cut-off Date. All
scheduled payments of principal due on or before the Cut-off Date and collected
after the Cut-off Date, together with the accompanying interest payments, shall
belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Depositor
pursuant hereto, the ownership of each Note, the related Mortgage Loan and the
contents of the related Mortgage File shall be vested in Depositor and the
ownership of all records and documents with respect to the related Mortgage Loan
prepared by or which come into the possession of Seller as seller of the
Mortgage Loans hereunder, exclusive in each case of records and documents that
are not required to be delivered hereunder by Seller, shall immediately vest in
Depositor. All Monthly Payments, Principal Prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the applicable Master Servicer via wire transfer for deposit
by the applicable Master Servicer into the Collection Account.
Upon the sale of Certificates representing at least 10% of the fair
value of all the Certificates to unaffiliated third parties, Seller shall, under
generally accepted accounting principles ("GAAP"), report its transfer of the
Mortgage Loans to Depositor, as provided herein, as a sale of the Mortgage Loans
to Depositor in exchange for the consideration specified in Section 2 hereof. In
connection with the foregoing, upon sale of Certificates representing at least
10% of the fair value of all the Certificates to unaffiliated third parties,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Regardless of its treatment
of the transfer of the Mortgage Loans to the Depositor under GAAP, Seller shall
at all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent to clearly reflect that the Mortgage Loans have been transferred
to Depositor and are no longer available to satisfy claims of Seller's
creditors.
After Seller's transfer of the Mortgage Loans to Depositor, as
provided herein, Seller shall not take any action inconsistent with Depositor's
ownership (or the ownership by any of Depositor's assignees) 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 Seller is expressly permitted to complete subsequent to the Closing
Date, Seller shall, on or before the Closing Date, take all actions required
under applicable law to effectuate the transfer of the Mortgage Loans by Seller
to Depositor.
Section 4. Depositor's Conditions to Closing. The obligations of
Depositor to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Depositor shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Depositor, or if directed by Depositor, the Trustee or
Depositor's attorneys or other designee, shall have received in escrow, all of
the following closing documents, in such forms as are agreed upon and reasonably
acceptable to Depositor and Seller, duly executed by all signatories other than
Depositor, as required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1
of this Agreement, which shall have been delivered to and held by the
Trustee or its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) the certificate of Seller confirming its representations
and warranties set forth in Section 6(a) (subject to the exceptions set
forth in the Exception Report) as of the Closing Date;
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, covering various corporate matters and such other matters
as shall be reasonably required by Depositor;
(v) such other certificates of Seller's officers or others and
such other documents to evidence fulfillment of the conditions set
forth in this Agreement as Depositor or its counsel may reasonably
request; and
(vi) all other information, documents, certificates, or
letters with respect to the Mortgage Loans or Seller and its Affiliates
as are reasonably requested by Depositor in order for Depositor to
perform any of it obligations or satisfy any of the conditions on its
part to be performed or satisfied pursuant to any sale of Mortgage
Loans by Depositor as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
(d) Seller shall have delivered to the Trustee, on or before the
Closing Date, five limited powers of attorney in favor of the Trustee and
Special Servicer empowering the Trustee and, in the event of the failure or
incapacity of the Trustee, the Special Servicer, to record, at the expense of
Seller, any Mortgage Loan Documents required to be recorded and any intervening
assignments with evidence of recording thereon that are required to be included
in the Mortgage Files. Seller shall reasonably cooperate with the Trustee or the
applicable Special Servicer after the Closing Date, the Seller shall deliver to
the Trustee or the applicable Special Servicer, as applicable, the powers of
attorney described in the prior sentence in form and substance reasonably
acceptable to the requesting party.
(e) The Seller shall have paid or caused to be paid upfront all the
annual fees of each Rating Agency allocable to the Mortgage Loans.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Depositor required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Depositor under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Depositor which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Depositor.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Depositor, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) an officer's certificate of Depositor, dated as of the
Closing Date, with the resolutions of Depositor authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date of
Depositor; and
(ii) such other certificates of its officers or others, such
opinions of Depositor's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement as
Seller or its counsel may reasonably request.
(c) Depositor shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.(1)
(a) Seller represents and warrants to Depositor as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
Seller has conducted and is conducting its business so as to comply in
all material respects with all applicable statutes and regulations of
regulatory bodies or agencies having jurisdiction over it, except where
the failure so to comply would not have a materially adverse effect on
the performance by Seller of this Agreement, and there is no charge,
action, suit or proceeding before or by any court, regulatory authority
or governmental agency or body pending or, to the knowledge of Seller,
threatened, which is reasonably likely to materially and adversely
affect the performance by Seller of this Agreement or the consummation
of transactions contemplated by this Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans owned by it and to execute
and deliver this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all
agreements and documents executed and delivered by Seller in connection
herewith). Seller has duly authorized the execution, delivery and
performance of this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith), and has duly
executed and delivered this Agreement (and all agreements and documents
executed and delivered by Seller in connection herewith). This
Agreement (and each agreement and document executed and delivered by
Seller in connection herewith), assuming due authorization, execution
and delivery thereof by each other party thereto, constitutes the
legal, valid and binding obligation of Seller enforceable in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, fraudulent transfer, insolvency, reorganization,
receivership, moratorium or other laws relating to or affecting the
rights of creditors generally, by general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law) and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or
result in a breach of any of the terms, conditions or provisions of
Seller's articles or certificate of incorporation and bylaws or similar
type organizational documents, as applicable; (B) conflict with, result
in a breach of, or constitute a default or result in an acceleration
under, any agreement or instrument to which Seller is now a party or by
which it (or any of its properties) is bound if compliance therewith is
necessary (1) to ensure the enforceability of this Agreement or (2) for
Seller to perform its duties and obligations under this Agreement (or
any agreement or document executed and delivered by Seller in
connection herewith); (C) conflict with or result in a breach of any
legal restriction if compliance therewith is necessary (1) to ensure
the enforceability of this Agreement or (2) for Seller to perform its
duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith); (D)
result in the violation of any law, rule, regulation, order, judgment
or decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations under
this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith); or (E) result in the creation or
imposition of any lien, charge or encumbrance that would have a
material adverse effect upon Seller's ability to perform its duties and
obligations under this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith), or materially impair
the ability of Depositor to realize on the Mortgage Loans owned by
Seller.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will not cause Seller to become insolvent and (2) is not intended by
Seller to hinder, delay or defraud any of its present or future
creditors. After giving effect to its transfer of the Mortgage Loans,
as provided herein, the value of Seller's assets, either taken at their
present fair saleable value or at fair valuation, will exceed the
amount of Seller's debts and obligations, including contingent and
unliquidated debts and obligations of Seller, and Seller will not be
left with unreasonably small assets or capital with which to engage in
and conduct its business. 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. No proceedings looking
toward liquidation, dissolution or bankruptcy of Seller are pending or
contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over Seller
is required for (A) Seller's execution, delivery and performance of
this Agreement (or any agreement or document executed and delivered by
Seller in connection herewith), (B) Seller's transfer and assignment of
the Mortgage Loans, or (C) the consummation by Seller of the
transactions contemplated by this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith) or,
to the extent so required, such consent, approval, authorization,
order, registration, filing or notice has been obtained, made or given
(as applicable), except for the filing or recording of assignments and
other Mortgage Loan Documents contemplated by the terms of this
Agreement and except that Seller may not be duly qualified to transact
business as a foreign corporation or licensed in one or more states if
such qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is receiving new value. The consideration received by Seller upon the
sale of the Mortgage Loans owned by it constitutes at least fair
consideration and reasonably equivalent value for the Mortgage Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which are
reasonably likely to draw into question the validity of this Agreement
(or any agreement or document executed and delivered by Seller in
connection herewith) or which, either in any one instance or in the
aggregate, are reasonably likely to materially impair the ability of
Seller to perform its duties and obligations under this Agreement (or
any agreement or document executed and delivered by Seller in
connection herewith).
(ix) Seller's performance of its duties and obligations under
this Agreement (and each agreement or document executed and delivered
by Seller in connection herewith) is in the ordinary course of business
of Seller and Seller's transfer, assignment and conveyance of the
Mortgage Loans pursuant to this Agreement are not subject to the bulk
transfer or similar statutory provisions in effect in any applicable
jurisdiction. The Mortgage Loans do not constitute all or substantially
all of Seller's assets.
(x) Seller has not dealt with any Person that may be entitled,
by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to
Depositor hereunder except for (A) the reimbursement of expenses as
described herein or otherwise in connection with the transactions
described in Section 2 hereof and (B) the commissions or compensation
owed to the Underwriters or the Initial Purchaser.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of its
properties) is bound which breach or default would materially and
adversely affect the ability of Seller to perform its obligations under
this Agreement.
(xii) The representations and warranties contained in Exhibit
A hereto, subject to the exceptions to such representations and
warranties set forth on Schedule V hereto, are true and correct in all
material respects as of the date hereof with respect to the Mortgage
Loans identified on Schedule II.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Trustee as the holder of the
Mortgage Loan to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "most recent due date for the subject Replacement Mortgage
Loan on or before the date of substitution"). From and after the date of
substitution, each Replacement Mortgage Loan, if any, shall be deemed to
constitute a "Mortgage Loan" hereunder for all purposes.
Section 7. Obligations of Seller(2). Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement or the Pooling and Servicing Agreement. The representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall not be impaired by any review or examination of the
Mortgage Files or other documents evidencing or relating to the Mortgage Loans
or any failure on the part of Depositor to review or examine such documents and
shall inure to the benefit of the initial transferee of the Mortgage Loans from
Depositor including, without limitation, the Trustee for the benefit of the
Holders of the Certificates, notwithstanding (1) any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases or (2) any termination of this Agreement prior to the Closing, but shall
not inure to the benefit of any subsequent transferee thereafter.
If Seller receives notice of a breach of any of the representations
or warranties made by Seller with respect to the Mortgage Loans, as of the date
hereof in Section 6(a)(xii) or as of the Closing Date pursuant to Section
4(b)(iii) (in either case, subject to the exceptions to such representations and
warranties set forth in the Exception Report) or with respect to any Replacement
Mortgage Loan, as of the date of substitution pursuant to Section 6(b) (in any
such case, a "Breach"), or receives notice that (a) any document required to be
included in the Mortgage File related to any Mortgage Loan is not in the
Trustee's (or its designee's) possession within the time period required herein
or (b) such document has not been properly executed or is otherwise defective on
its face (clause (a) and clause (b) each, a "Defect" (which term shall include
the "Defects" detailed in the immediately following paragraph) in the related
Mortgage File), and if such Breach or Defect, as the case may be, materially and
adversely affects or is deemed hereby to materially and adversely affect, the
value of the related Mortgage Loan or any successor REO Loan or the interests of
any class of Certificateholders (any Breach or Defect that materially and
adversely affects the value of the related Mortgage Loan or the interests of any
class of Certificateholders, a "Material Breach" or a "Material Defect",
respectively), then the Seller shall, upon written request of Depositor, the
Trustee, the applicable Master Servicer or the applicable Special Servicer, not
later than 90 days after the receipt by Seller of such written request (subject
to the second succeeding paragraph, the "Initial Resolution Period"): (i) cure
such Material Breach or Material Defect, as the case may be, in all material
respects; (ii) repurchase the affected Mortgage Loan at the applicable Purchase
Price (as defined in the Pooling and Servicing Agreement); or (iii) substitute,
in accordance with the Pooling and Servicing Agreement, one or more Qualified
Substitute Mortgage Loans (as defined in the Pooling and Servicing Agreement)
for such affected Mortgage Loan (provided that in no event shall any
substitution occur later than the second anniversary of the Closing Date) and
pay the applicable Master Servicer for deposit into the applicable Collection
Account any Substitution Shortfall Amount (as defined in the Pooling and
Servicing Agreement) in connection therewith; provided, however, that if (i)
such Material Breach or Material Defect is capable of being cured but not within
the Initial Resolution Period, (ii) such Material Breach or Material Defect does
not cause the related Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code), (iii) Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Defect
within the Initial Resolution Period and (iv) Seller has delivered to the Rating
Agencies, the applicable Master Servicer, the applicable Special Servicer and
the Trustee an Officer's Certificate that describes the reasons that the cure
was not effected within the Initial Resolution Period and the actions that it
proposes to take to effect the cure and that states that it anticipates the cure
will be effected within the additional 90-day period, then Seller shall have an
additional 90 days to cure such Material Defect or Material Breach. If any
Breach pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Trust Fund (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by the applicable Master Servicer, the applicable Special
Servicer, the Trustee or the Trust Fund that are the basis of such Breach and
have not been reimbursed by the related Borrower; provided, however, that in the
event any such costs and expenses exceed $10,000, Seller shall have the option
to either repurchase the related Mortgage Loan at the applicable Purchase Price,
replace such Mortgage Loan and pay any applicable Substitution Shortfall Amount
or pay such costs and expenses. Except as provided in the proviso to the
immediately preceding sentence, Seller shall remit the amount of such costs and
expenses and upon its making such remittance, Seller shall be deemed to have
cured such Breach in all respects. Provided such payment is made, the second
preceding sentence describes the sole remedy available to the Certificateholders
and the Trustee on their behalf regarding any such Breach, and Seller shall not
be obligated to repurchase, substitute or otherwise cure such Breach under any
circumstances. With respect to any repurchase of a Mortgage Loan hereunder or
any substitution of one or more Qualified Substitute Mortgage Loans for a
Mortgage Loan hereunder, (A) no such substitution may be made in any calendar
month after the Determination Date for such month; (B) scheduled payments of
principal and interest due with respect to the Qualified Substitute Mortgage
Loan(s) after the month of substitution, and scheduled payments of principal and
interest due with respect to each Mortgage Loan being repurchased or replaced
after the related Cut-off Date and received by the applicable Master Servicer or
the applicable Special Servicer on behalf of the Trust on or prior to the
related date of repurchase or substitution, shall be part of the Trust Fund; and
(C) scheduled payments of principal and interest due with respect to each such
Qualified Substitute Mortgage Loan on or prior to the Due Date in the month of
substitution, and scheduled payments of principal and interest due with respect
to each Mortgage Loan being repurchased or replaced and received by the
applicable Master Servicer or the applicable Special Servicer on behalf of the
Trust after the related date of repurchase or substitution, shall not be part of
the Trust Fund, and Seller (or, if applicable, any person effecting the related
repurchase or substitution in the place of Seller) shall be entitled to receive
such payments promptly following receipt by the applicable Master Servicer or
the applicable Special Servicer, as applicable, under the Pooling and Servicing
Agreement.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (i) of the definition of
Mortgage File in Section 3; (d) the absence from the Mortgage File of any
intervening assignments required to create an effective assignment to the
Trustee on behalf of the Trust, unless there is included in the Mortgage File a
certified copy of the intervening assignment as recorded or as sent for
recordation, together with a certificate stating that the original intervening
assignment was sent for recordation, or a copy of the intervening assignment and
the related recording information; or (e) the absence from the Mortgage File of
any required original letter of credit (unless such original has been delivered
to the applicable Master Servicer and copy thereof is part of the Mortgage
File), provided that such Defect may be cured by any substitute letter of credit
or cash reserve on behalf of the related Borrower; or (f) the absence from the
Mortgage File of the original or a copy of any required ground lease.
Notwithstanding anything herein to the contrary, the failure to include a
document checklist in a Mortgage File shall in no event constitute a Material
Defect.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7. If (i)
any Mortgage Loan is required to be repurchased or substituted for as provided
above, (ii) such Mortgage Loan is a Crossed Mortgage Loan that is a part of a
Mortgage Group (as defined below) and (iii) the applicable Breach or Defect does
not constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in such Mortgage Group (without regard to this paragraph), then
the applicable Breach or Defect, as the case may be, will be deemed to
constitute a Breach or Defect, as the case may be, as to any other Crossed
Mortgage Loan in the Mortgage Group for purposes of the above provisions, and
Seller will be required to repurchase or substitute for such other Crossed
Mortgage Loan(s) in the related Mortgage Group in accordance with the provisions
of this Section 7 unless the Crossed Mortgage Loan Repurchase Criteria would be
satisfied if Seller were to repurchase or substitute for only the affected
Crossed Mortgage Loans as to which a Material Breach or Material Defect had
occurred without regard to this paragraph, and in the case of either such
repurchase or substitution, all of the other requirements set forth in the
Pooling and Servicing Agreement applicable to a repurchase or substitution, as
the case may be, would be so satisfied. In the event that one or more of such
other Crossed Mortgage Loans satisfy the Crossed Mortgage Loan Repurchase
Criteria, Seller may elect either to repurchase or substitute for only the
affected Crossed Mortgage Loan as to which the related Breach or Defect exists
or to repurchase or substitute for all of the Crossed Mortgage Loans in the
related Mortgage Group. Seller shall be responsible for the cost of any
Appraisal required to be obtained by the applicable Master Servicer to determine
if the Crossed Mortgage Loan Repurchase Criteria have been satisfied, so long as
the scope and cost of such Appraisal has been approved by Seller (such approval
not to be unreasonably withheld). For purposes of this paragraph, a "Mortgage
Group" is any group of Mortgage Loans identified as a Mortgage Group on Schedule
III to this Agreement.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties (but not all of
the Mortgaged Properties) with respect to a Mortgage Loan, Seller will not be
obligated to repurchase or substitute for the entire Mortgage Loan if the
affected Mortgaged Property may, pursuant to the partial release provisions in
the related Mortgage Loan Documents, be released and the Mortgaged Property
remaining after such release satisfies the requirements, if any, set forth in
the Mortgage Loan Documents and (i) Seller provides an opinion of counsel to the
effect that such partial release would not cause an Adverse REMIC Event (as
defined in the Pooling and Servicing Agreement) to occur, (ii) Seller pays (or
causes to be paid) the applicable release price required under the Mortgage Loan
Documents and, to the extent not reimbursable out of the release price pursuant
to the related Mortgage Loan Documents, any additional amounts necessary to
cover all reasonable out-of-pocket expenses reasonably incurred by the
applicable Master Servicer, the applicable Special Servicer, the Trustee or the
Trust Fund in connection therewith, including any unreimbursed advances and
interest thereon made with respect to the Mortgaged Property that is being
released and (iii) such cure by release of such Mortgaged Property is effected
within the time periods specified for cure of a Material Breach or Material
Defect in this Section 7.
The Purchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Depositor or,
subsequent to the assignment of the Mortgage Loans to the Trustee, the Trustee
as its assignee, by wire transfer of immediately available funds to the account
designated by Depositor or the Trustee, as the case may be, and Depositor or the
Trustee, as the case may be, upon receipt of such funds (and, in the case of a
substitution, the Mortgage File(s) for the related Qualified Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and Servicer File
(and all other documents pertaining to such Mortgage Loan possessed by the
Depositor or the Trustee, as applicable, or on its behalf, but excluding any
draft documents, attorney/client privileged communications and documents
prepared by the Depositor or the Trustee (or by the Master Servicer or the
Special Servicer on behalf of the Trust), as applicable, or any of its
Affiliates solely for internal communication) or cause them to be released, to
Seller and shall execute and deliver such instruments of transfer, endorsement
or assignment as shall be necessary to vest in 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) and the
related Mortgage Loan Documents and shall deliver to Seller any escrow payments
and reserve funds held by it, or on its behalf, with respect to such repurchased
or replaced Mortgage Loan.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Depositor and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Crossed Mortgage Loans. With respect to any Crossed
Mortgage Loan conveyed hereunder, to the extent that Seller repurchases or
substitutes for an affected Crossed Mortgage Loan in the manner prescribed above
while the Trustee continues to hold any related Crossed Mortgage Loans, Seller
and Depositor (on behalf of its successors and assigns) agree to modify upon
such repurchase or substitution, the related Mortgage Loan Documents in a manner
such that such affected Crossed Mortgage Loan repurchased or substituted by
Seller, on the one hand, and any related Crossed Mortgage Loans still held by
the Trustee, on the other, would no longer be cross-defaulted or
cross-collateralized with one another; provided that Seller shall have furnished
the Trustee, at Seller's expense, with an Opinion of Counsel that such
modification shall not cause an Adverse REMIC Event; and provided, further, that
if such Opinion of Counsel cannot be furnished, Seller and Depositor hereby
agree that such repurchase or substitution of only the affected Crossed Mortgage
Loans, notwithstanding anything to the contrary herein, shall not be permitted.
Any reserve or other cash collateral or letters of credit securing the subject
Crossed Mortgage Loans shall be allocated between such Mortgage Loans in
accordance with the Mortgage Loan Documents. All other terms of the Mortgage
Loans shall remain in full force and effect, without any modification thereof.
Section 9. Rating Agency Fees; Costs and Expenses Associated with a
Defeasance. The Seller shall pay all Rating Agency fees associated with an
assumption of a Mortgage Loan to the extent such fees have not been paid by the
related Borrower and such Borrower is not required to pay them under the terms
of the related Mortgage Loan Documents in effect on or before the Closing Date,
the payment of which fees shall constitute the sole remedy of any breach by a
Seller of representation (xxviii)(1) set forth on Exhibit A hereto unless the
Seller elects to repurchase or substitute for such Mortgage Loan in accordance
with the second paragraph of Section 7. The Seller shall pay all reasonable
costs and expenses associated with a defeasance of a Mortgage Loan to the extent
such costs and expenses have not been paid by the related Borrower and such
Borrower is not required to pay them under the terms of the related Mortgage
Loan Documents in effect on or before the Closing Date, the payment of which
fees shall constitute the sole remedy of any breach by a Seller of
representation (liv)(F) set forth on Exhibit A hereto unless the Seller elects
to repurchase or substitute for such Mortgage Loan in accordance with the second
paragraph of Section 7.
Section 10. Representations and Warranties of Depositor. Depositor
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Depositor is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Depositor of this Agreement and
the performance of Depositor's obligations hereunder are within the corporate
power of Depositor and have been duly authorized by Depositor and neither the
execution and delivery by Depositor of this Agreement nor the compliance by
Depositor with the provisions hereof, nor the consummation by Depositor of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Depositor or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Depositor or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Depositor is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Depositor,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Depositor
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Depositor in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Depositor, threatened against Depositor
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 and 13 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein and delivery of the Certificates or termination of this
Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel, and Depositor and Seller agree to pay the other
transaction expenses incurred in connection with the transactions herein
contemplated as set forth in the Closing Statement (or, if not covered thereby,
shall be paid by the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Trustee or its designee all recording and filing fees and expenses incurred
by the Trustee or its designee in connection with the recording or filing of the
Mortgage Loan Documents listed in Section 3 of this Agreement, including
Assignments. In the event Seller elects to engage a third-party contractor to
prepare, complete, file and record Assignments with respect to Mortgage Loans as
provided in Section 3 of this Agreement, Seller shall contract directly with
such contractor and shall be responsible for such contractor's compensation and
reimbursement of recording and filing fees and other reimbursable expenses
pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Depositor, will be mailed, delivered or telecopied and confirmed to it at
Credit Suisse First Boston Mortgage Securities Corp., 00 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy No.: (212)
743-4756 (with a copy to Xxxxx XxXxxxxxxx, Esq., Legal & Compliance Department,
Telecopy No.: (000) 000-0000), or such other address or telecopy number as may
be designated by Depositor to Seller in writing, or (b) if sent to Seller, will
be mailed, delivered or telecopied and confirmed to it at 0000 Xxxxxxxxx Xxxx,
X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Telecopy
No.: (000) 000-0000, or such other address or telecopy number as may be
designated by Seller to Depositor in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Depositor or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Depositor
and Seller. The fact that Depositor or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Depositor or the Trustee (for the benefit of the
Certificateholders) to demand cure, repurchase, or other relief as provided
herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Depositor and their respective successors
and, permitted assigns and nothing expressed in this Agreement is intended or
shall be construed to give any other Person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
Persons and for the benefit of no other Person; it being understood that the
rights of Depositor pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to the Trustee, for benefit of the Certificateholders, as may be
required to effect the purposes of the Pooling and Servicing Agreement and, upon
such assignment, the Trustee shall succeed to such rights of Depositor
hereunder; provided that the Trustee shall have no right to further assign such
rights to any other Person. No owner of a Certificate issued pursuant to the
Pooling and Servicing Agreement shall be deemed a successor or permitted assign
because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Depositor and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Depositor as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Depositor. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Depositor to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Depositor a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising from
or relating to any of the property described in the Mortgage Loans,
including the related Notes, Mortgages and title, hazard and other
insurance policies, identified on the Mortgage Loan Schedule or that
constitute Replacement Mortgage Loans, and all distributions with
respect thereto payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable with
respect to, or claims against other persons with respect to, all or any
part of the collateral described in clause (i) above (including any
accrued discount realized on liquidation of any investment purchased at
a discount), in each case, payable after the Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above payable after the Cut-off Date;
(c) the possession by Depositor or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Depositor or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Depositor or its assignee, 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 and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Depositor and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC Financing Statements
as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Depositor accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Depositor.
* * *
--------
(1) Seller makes no representations about the NCB/Column Mortgage Loans and
relies specifically on, and assigns to Depositor, the representations made by
NCB, FSB and National Consumer Cooperative Bank as set forth on Exhibit A to
their respective NCB Mortgage Loan Purchase Agreement, attached hereto as
Exhibit B and Exhibit C.
(2) As aforementioned, Seller's obligations set forth herein to not apply to the
NCB/Column Mortgage Loans. With respect to the NCB/Column Mortgage Loans, the
applicable NCB Mortgage Loan Purchase Agreement seller bears the following
obligations.
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as the date first
above written.
COLUMN FINANCIAL, INC.,
as Seller
By:
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By:
--------------------------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of November 1, 2005, between Column Financial, Inc. (the "Seller") and Credit
Suisse First Boston Mortgage Securities Corp (the "Depositor"). Capitalized
terms used herein without definition have the meanings given them in or by
reference in the Agreement or, if not defined in the Agreement, in the Pooling
and Servicing Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"CBA Mortgage Loan" means any Mortgage Loan that constitutes a "CBA
A Loan" under the Pooling and Servicing Agreement.
"Certificate Purchase Agreement" means the Certificate Purchase
Agreement, dated October 26, 2005, between Depositor and the Initial Purchaser.
"Certificates" means the Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2005-C5,
issued in multiple classes.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means November 9, 2005.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crossed Mortgage Loan" means any Mortgage Loan which is
cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in November 2005 (or with
respect to Mortgage Loans which had closing/funding dates in November 2005, the
respective closing/funding dates of such Mortgage Loans).
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) and under the written certificate described in Section
4(b)(iii) of this Agreement, which exceptions are set forth in Schedule V
attached hereto and made a part hereof.
"Initial Purchaser" means Credit Suisse First Boston LLC.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Group" shall have the meaning given such term in Section 7
of this Agreement.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement, including the
NCB/Column Mortgage Loans.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"NCB/Column Mortgage Loans" shall mean the 22 mortgage loans
originated by NCB, FSB or National Consumer Cooperative Bank and sold to Seller.
"Offering Circular" means the confidential offering circular dated
October 26, 2005, describing certain classes of the Private Certificates.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement creating the Trust Fund and the interests therein, dated as of
November 1, 2005, among Depositor, the Master Servicers, the Special Servicers
and the Trustee, including, without limitation, the exhibits and schedules
annexed thereto.
"Primary Collateral" means with respect to any Crossed Mortgage
Loan, that portion of the Mortgaged Property designated as directly securing
such Crossed Mortgage Loan and excluding any Mortgaged Property as to which the
related lien may only be foreclosed upon by exercise of the
cross-collateralization provisions of such Crossed Mortgage Loan.
"Private Certificates" means the Certificates that are not Publicly
Offered Certificates.
"Prospectus" means the Prospectus dated October 14, 2005, that is a
part of Depositor's registration statement on Form S-3 (File No. 333-121904).
"Prospectus Supplement" means the Prospectus Supplement, dated
October 26, 2005, relating to the Publicly Offered Certificates.
"Publicly Offered Certificates" means the Class A-1, Class X-0,
Xxxxx X-0, Class A-AB, Class A-3, Class A-4, Class A-1-A, Class A-M, Class A-J,
Class B, Class C, Class D, Class E and Class F Certificates.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3.
"Trust Fund" shall have the meaning given such term in Recital II of
this Agreement.
"Trustee" shall have the meaning given such term in Section 1 of
this Agreement.
"Underwriters" means Credit Suisse First Boston LLC, GMAC Commercial
Holding Capital Markets Corp., Bank of America Securities LLC, Deutsche Bank
Securities Inc. and Wachovia Capital Markets, LLC.
"Underwriting Agreement" means the Underwriting Agreement, dated
October 26, 2005, between Depositor and the Underwriters.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[see attached]
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2005-C5
# Crossed Property Name
-----------------------------------------------------------------
1 000 Xxxx Xxxxxx
0 Xx. Xxxxx Xxxx Center
3 Del Monte Center
6 The Palisades
8 Frenchman's Reef & Morning Star
9 Gallery at Xxxxx Xxxxxx
00 Xxxxxx Xxxx Center
14 Black Canyon & Red Mountain Office Buildings
15 A Staten (Park Hill II)
00 X Xxxxxx (Xxxx Xxxx I)
17 A Staten (St. George's)
00 Xxxxxxxxxx Xxxxx Xxxxxxxxxx
00 Xxxxxxxxx Center Mall
00 Xxxxxx Xxxxx
00 Xxxxx Xxxxxxx Corp.
00 Xxx Xxxxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxx at Spring Farm
27 Signature Park Apartments
33 The Pittsfield Building
34 The Shores Apartments
35 Davis Ford Crossing
36 000 0xx Xxxxxx
00 XXXXXXX - Xxxxxxxx Apartments
40 Centurion
00 Xxxxxxxxxx Xxxx Xxxxx
00 Xxxxxxxx Xxxxxx Hotel
46 Mountain Xxxxxxx Xxxxx
00 Xxx Xxxx Xxxxxxxxxx
00 0000 & 0000 Xxxxxxxx Xxxxx
55 Port St. Lucie Towncenter
57 Residence Inn Norfolk Airport
58 Waterways Shoppes of Xxxxxx XX
63 Waterways Shoppes of Weston
64 Torrance Crossroads
66 Lincoln View Plaza
67 00 Xxxx 00xx Xxxxxx Corporation
00 Xxxxxxxxx Xxxxx
70 Xxxxxxx Station Shopping Center
71 Wappingers Shopping Center
75 Woodlands at Statesboro Apartments
00 Xxxx Xx Xxxxx
00 Xxxxxx Xxxx Center
78 ISE Buildings
79 Valencia Oaks Xxxxxx
00 Xxxxxxxxx Xxxxxxxxxx
00 Xxxxxxxx Xxxxx
87 Country Manor Apts.
88 Lofts at Canal Walk Phase II
89 00 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxx Apartments
95 00-00 00xx Xxxxxx Owners, Inc.
00 Xxxxxx Xxxxx Xxxxxxx Corp.
00 Xxxxxxx Xxxx Retail Center
98 Hampton Inn Mystic
99 East Aurora Portfolio
000 Xxxxxxxxx Xxxxxx
000 X Xx Xxxxxx MHP
103 C El Dorado West MHP
104 Xxxxxx Xxxx Apartments
000 Xxxxxxx Xxx & Xxxxxx Xxxxxxxxxxx
106 D Northern Trust Bank Building
107 D Coldwell Banker Building
108 D Bank United Building
112 Residence Inn Albuquerque
000 Xxxxxxx Xxx Apartments
120 Residence Inn Wilmington Landfall
121 Berkshire Village Townhouses, Inc.
125 Courtyard Tifton
126 Holiday Inn Express Hotel & Suites - Jacksonville
127 Forest Creek Apartments
128 Shoppes of Acworth
129 Spectra-Physics Facility
000 Xxxxxx Xxxxxxx Apartment Corporation
135 Milltowne Villas
138 The Olympia Apartments
141 Pelican Pointe Apartments
143 Xxxxxx MHP Portfolio (3)
144 Shoppes at Xxxxx Xxxx
000 000 Xxxx 53 Tenants Corp.
147 00 Xxx Xxxxxxx Xxxxx
148 Palm Apartments
000 X Xxxx Xxxxx Xxxxxx
000 X Xxxxxxxxx Xxxxxx
151 E Windsor Arms Apartments
152 000 Xxxxx Xxxx
000 Xxxxxxxxxx Xxxx Center
156 Hidden Acres Apartments
000 Xxxx Xxxx Xxxxxxxxxx
000 Xxxxx Xxxxx Collection
159 Jupiter Crossing Apartments
160 Sandhurst Apartments
000 X Xx. Xxxxxxx Xxxxxxxx Xx. 000
164 F St. Xxxxxxx Building No. 558
165 Ponderosa Acres Apartments
170 Rialto Industrial Building
171 Xxxx Krossing Shopping Center
174 Shoppes at Seven Hills
000 Xxxxxxxxx Xxxxx Shopping Center
179 Corner of Paradise
180 Park Towers Owners, Inc.
000 Xxxx Xxxx
000 Xxxxx Xxxxx Xxxxxxx MHP
000 Xxxx Xxxxxx Xxxxxxx
000 Xxxxxxx Xxx Shenandoah
190 176 Broadway Owners Corp.
000 Xxxxxxxx Xxxxxx
192 Lawnfair Apartments
193 Xxxxxxx Industrial Building II
000 Xxxx Xxxxx Xxxxxx
197 505 WE Owners Corp.
198 Breukelen Owners Corp.
000 Xxxxxxx 000 Xxxxxx
000 Xxxxxx Xxxxx Apartments - Senior
000 Xxxxxxxxx Xxxxxxxxxx
000 Xxxxxxxxxxx XXX
000 Xxx Xxxxxxx 00xx Xxxxxx Owners Corp.
206 Clearfork MHP
000 Xxxxxx Xxxxx
210 Capitol House Tenants Corp.
000 Xxxxxxxx Xxx Shopping Center
213 Xxxxx Xxxxxx Apts
000 Xxxxxxx Xxxxxxx - Xxxxxxx, XX
000 Xxxxx Xxxxxx Xxx Xxxxxx
216 One Xxxxxx Park, Inc.
000 Xxxxx Xxxxxx
000 Xxxxxxxxx Owners, Inc.
000 Xxxxxxxx Xxxx Apartments
220 000 Xxxxx Xxxxxx Corporation
000 Xxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx Xxxxxxxx
000 Xxxxxxxxx Apartments
228 Strongsville Executive Building
229 000 Xxxx Xxxxxx
230 311 East 75th Owners Corp.
000 Xxxxxx Xxxx XXX
232 The Glass House Cooperative, Inc.
234 0000 XX 0xx Xxxxxx
235 Empire State Lofts Limited
236 Greenwich Corp.
000 Xxxxxxxx XXX
000 Xxxxx Xxxxxx
240 Kensington Apartments
241 00-00 00xx Xxxxxx
000 00 Owners Ltd.
244 000 Xxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxx Tenants Inc.
000 Xxxxxxxx Xxxxx
249 Xxxxxx Shops
250 Oakwood Portfolio
251 0000 XX 0xx Xxxxxx
000 Xxxxxx Shopping Center
000 Xxxxxxxxxx Xxxxxxxxxx
000 Xxxxxxxx Xxxxxxx Townhomes
000 Xxxxxxxxx Xxxxxx MHP
260 Mountain View
000 Xxxxxxxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxxxxxxxx
000 Xxxxxxxxx Xxxxxxxx
264 Trade Winds MHC
265 Xxxxxxxxx Xxxx Xxxxx
000 Xxxxxxx Xxxxx
000 Xxxx Xxxxx Retail
269 Walgreens - Armitage
270 258 3rd avenue
000 Xxxxxxxxxxxx Xxxxx
272 000 Xxxx Xxxxx Xxxxxx
273 Village Inn Apartments
000 Xxxxxxx & Xxxxxxx Xxxxxx
275 Albertsons Xxxxxx
000 Xxxxxxxxx MHP
000 Xxxxx Xxxxx
000 Xxxxxxxxx Apartments
280 Rolling Acres MHP
# Address
------------------------------------------------------------------------------------------
1 000 Xxxx Xxxxxx
0 XXX J Xxxxxx Xxxxxx Boulevard and XX 0X
0 0000 Xxx Xxxxx Xxxxxx
6 0000 Xxxxxxx Xxxxxx
8 5 Estate Bakkeroe
9 0000 Xxxxxxx Xxxx
10 0000 Xxxxxx Xxxxx
14 Various
15 240-260-280 Xxxxxxxx Avenue
16 140, 160 and 000 Xxxxxxxx Xxxxxx
17 000-000 Xxxxxxxx Xxxxxx
20 0000 Xxxx Xxxxxx Xxxx
21 21500 Xxxxxxxxxxxx Xxxxxxx
00 0000 Xxxx Xxx Xxxxxx
00 0000 & 0000 Xxxx 00xx Xxxxxx, 0000 & 0000 Xxxx 00xx Xxxxxx and 0000 Xxxx 00xx Xxxxxx
24 00000 Xxxxx Xxxxxxx Xxxxxx
26 3300 Open Xxxxx Xxxx
00 0000 Xxxxxxxxxxx Xxxxx
33 00 Xxxx Xxxxxxxxxx Xxxxxx
34 2450 Xxxxxxx Xxxx
00 0000 Xxxxxxx Avenue
36 000 0xx Xxxxxx
00 00000 Xxx Xxxxx Drive
40 1601 Forum Place
41 0000 Xxxxxxxxxx Xxxxx
44 128-130 & 000 Xxxx 00xx Xxxxxx
46 12801 - 00000 Xxxxxxxx Xxxxxx
47 000 Xxxx Xxxx Xxxxxx
48 0000-0000 Xxxxxxxx Xxxxx
00 00000-00000 Xxxxx XX Xxxxxxx 0
00 0000 Xxxxx Xxxxxxxx Xxxxxxx
00 2410-2460 Xxxxxx Xxxx
00 0000-0000 Xxxxxx Xxxx
64 24631-24667 Xxxxxxxx Boulevard
66 0000-0000 Xxxx Xxxxxxx Xxxxx
67 10 West 66th Street
69 18500-18580 Xxx Xxxxxxxxx
00 0000-0000 Xxxxxxxxx Xxxx
71 1271 Xxxxx 0
00 000 Xxxx Xxxxxx
76 0000 Xxxx Xxxxxx
77 2020, 2026, 2118 & 0000 Xxxx Xxxxx Xxxx
78 Various
79 00000 Xxxxxxxx Xxxxxxxxx
82 0000 000xx Xxxxx, Xxxxxxxxx
83 00000 Xxxxx Xxxxxx Xxxxx
87 2151 East Lincoln Xxxxxxx
00 0000 Xxxx Xxxx Xxxxxx
89 00 Xxxxxx Xxxxxx
00 0000 Xxx Xxxxx
95 00-00 00xx Xxxxxx
96 3750 & 0000 Xxxxxx Xxxxx Xxxxxxx
00 000-000 Xxxxxxx Xxxx
00 000 Xxxx Xxxx Xxxx
99 209, 634, 640, 658, 665, 671-673, and 000 Xxxx Xxxxxx
100 29399 and 00000 XX Xxxxxxx 00 Xxxxx
102 0000 Xxxxxx Xxxxxx
103 0000 Xxxxxx Xxxxxx
104 0000 Xxxxxx Xxxx Xxxx
105 3388 Xxxxxxxxx Xxxx
000 0000 Xxxxxx Xxxx
107 1760 Xxxx Xxxxx Xxxx
000 0000 Xxxxxx Xxxx
112 4331 Xxx 00 Xxx Xxxxxxxxx
000 00000 Xxxxxxxxx Xxxxxxx Way
120 0000 Xxxxxxxx Xxxxx
121 0000 Xxxxx 00xx Xxxxxx
125 814 West 0xx Xxxxxx
000 0000 Xxxxxxxxx Xxxx
127 000 Xxxxxx Xxxxx Xxxxx Xxxx
000 0000 Xxxx Xxxxxxx
129 0000 Xxxx Xxxxxx Xxxx
133 000 Xxxx 00 Xxxxxx
135 0000 Xxxxxxx Xxxxx
138 0000 Xxxxxx Xxxxxx Xxxxxxxxx
141 0000 Xxxxxxxx Xxxxxxxxx
143 Various
144 00-00 Xxxxxx Xxxxx Xxxx
146 333 East 53rd Xxxxxx
000 00 Xxx Xxxxxxx Xxxxx
148 0000 Xxxx 000xx Xxxxxx
149 0000-0000 Xxxxxxxxx Xxxxxx
150 0000-0000 Xxxxxxxxx Xxxxxx
151 1485 Xxxx 0xx Xxxxxx
000 000 Xxxxx Xxxx
155 000 Xxx Xxxxxx
156 304 Xxxxxxx Boulevard
000 0000-0000 College Avenue
158 000 Xxxxxxx Xxxx and 0000 Xxxxx Xxxxxxxxx
159 834 Jupiter Drive
160 0000 Xxxxxxxxx Xxxxx
163 000 Xx. Xxxxxxx Xxxxx
164 000 Xx. Xxxxxxx Xxxxx
165 0000 Xxxxxxxxxx Xxxxxx
170 000 Xxxxx Xxxxx Xxxxxx
171 3320 0xx Xxxxxx
000 00 Xxxxx Xxxxx Xxxxxxxxx
175 000 Xxxxxxx Xxxxx Xxxx
179 00000 X 00xx Xxx
180 000 Xxxxx Xxxxxxx
181 00-00 Xxxxx Xxxx Xxxxxx
182 0000 Xxxx Xxxxx Xxxxxxx
183 433 N.C. Xxxxxxx 00 Xxxxx
000 0000 Xxxxx Xxxxx
190 000 Xxxxxxxx
191 00000 Xxxxxxxxx Xxxxxx Northeast
192 000 Xxxxxxxxxx Xxxx
193 0000 Xxxx Xxxxxxx Xxxxx
194 0000 Xxxxx 000xx Xxxxxx
197 000 Xxxx Xxx Xxxxxx
000 00 Xxxxxxxx Xxxxxx
199 3826 Xxxxx Xxxxxxx
000 00000 Xxxxxx Xxxxx Xxxx
000 000 Xxxxxxxx Xxxxxx
204 3801 New Tampa Xxxxxxx
000 00-00 00xx Xxxxxx
000 0000 Xxxxx Xxxxx 00
209 13252-13302 Century Boulevard
210 000 Xxxxxxxx Xxxxxx
211 000 Xxxxx Xxxxxxxx Xxxx
213 0000 Xxxxxxxxx Xxxx
000 0000 Xxxxx 9
215 960-990 Xxxxx Xxxxxx
000 00 Xxxxxx Xxxxxx
217 0000 Xxxxx Xxxxx Xxxx
000 000 Xxxxx Xxxxxxxx
219 801 & 000 Xxxxx Xxxxx
220 000 Xxxxx Xxxxxx
222 431 Highway 179
223 25200 Xxxxxxx Xxxxxxxxx
000 0000 Xxxx Xxxxx
228 13550 Falling Xxxxx Xxxx
000 000 Xxxx Xxxxxx
230 000 Xxxx 00xx Xxxxxx
231 1450 N Xxxxx Xxxxx Xxxx
000 00 Xxxx 00xx Xxxxxx
234 1850 XX 0xx Xxxxxx
000 00 Xxxx 00xx Xxxxxx
236 000-000 Xxxxxxxxx Xxxxxx
000 Xxxxxxxx & Xxxxxx Xxxx Xxxxx
239 000-000 Xxxxx Xxxxx Xxxxxx
240 1004 Xxxxxxxxxx Xxxxxx
000 00-00 00xx Xxxxxx
243 00 Xxxx Xxxxxx
000 000 Xxxx Xxxxx Street
245 000 Xxxxxxxxx Xxxxx
246 11078 Xxxxxxxx Xxxxxx
000 0000 Xxxxxx Xxxx
250 Various
251 0000 Xxxxxxxxx 0xx Xxxxxx
000 000-000 & 000 Xxxxxx Xxxxxx Xxxx
255 0000 Xxxx Xxxxxx Xxxxxx
257 2323 Xxxxx Xxxx
000 0000 Xxxxxxxxx Street
260 0000 Xxxxx Xxxx Xxxxxx
261 3571 Niagra Xxxxx Xxxxxxxxx
000 0000 Xxxxx Xxxxxx Xxxx
263 13605 Xxxxxxxxx Xxxxxxxxx
000 0000 Xxxxx Xxx Xxxxxxx Boulevard
265 000 Xxxx Xxxx
000 000 Xxxxxxx-Xxxxxxxxx Turnpike
267 0000-0000 Xxxxx Xxxx Xxxxxx
269 0000 Xxxx Xxxxxxxx Xxxxxx
270 258 3rd Avenue
271 0000 Xxxxx Xxxxxxx Xxxxxx
272 000 Xxxx Xxxxx Xxxxxx
273 00-000 Xxxxxxxxx Xxxxx
274 000 Xxxxx Xxxxxxx Xxxxxx & 000-000 Xxxxxxx Xxxxxx
275 0000 Xxxxxxxxx Xxxxxxxxx
276 000 Xxxxx Xxxx Xxxxxx
278 1815 Xxxxx Place
279 000 Xxxxx Xxxxx Xxxx
280 0000 Xxxxxxx Xxxx
Zip Interest Net Mortgage Original
# City State Code Rate Rate Balance
----------------------------------------------------------------------------------------
1 Xxx Xxxx XX 00000 4.7443% 4.72344% $273,800,000
2 Xxxxxxxxxxxx XX 00000 5.0590% 5.03818% $170,000,000
3 Xxxxxxxx XX 00000 4.9256% 4.90478% $82,300,000
6 Xxxxxxxx XX 00000 5.2500% 5.22918% $65,000,000
0 Xx. Xxxxxx XX 00000 5.4400% 5.41918% $62,500,000
9 Xxxxxxx XX 00000 5.2700% 5.24918% $55,000,000
10 Xxxxxx XX 00000 4.9820% 4.93118% $45,400,000
14 Various Various Various 5.3500% 5.32918% $40,000,000
15 Xxxxxx Xxxxxx XX 00000 5.7700% 5.74918% $13,730,000
00 Xxxxxx Xxxxxx XX 00000 5.7700% 5.74918% $13,660,000
00 Xxxxxx Xxxxxx XX 00000 5.7700% 5.74918% $12,610,000
20 Xxxxxxxxxx XX 00000 5.1900% 5.16918% $34,000,000
00 Xxxxxxxxxx XX 00000 5.7000% 5.63918% $31,000,000
22 Xxxxxxxxx XX 00000 5.1800% 5.15918% $31,000,000
23 Xxxxxxxx XX 00000 5.5500% 5.46918% $29,000,000
00 Xxxxxx Xxxxx Xxxxxx XX 00000 5.1100% 5.08918% $24,000,000
26 Xxxxxxxxx XX 00000 5.7100% 5.68918% $22,500,000
27 Xxxxx XX 00000 5.1900% 5.16918% $21,650,000
33 Xxxxxxx XX 00000 5.5800% 5.55918% $20,000,000
34 Xxxxxxxx XX 00000 5.3500% 5.32918% $18,600,000
35 Xxxxxxxx XX 00000 4.9100% 4.88918% $18,500,000
36 Xxx Xxxx XX 00000 5.4000% 5.37918% $18,000,000
00 Xxx Xxxxxxxxx XX 00000 5.1500% 5.12918% $18,000,000
00 Xxxx Xxxx Xxxxx XX 00000 4.9300% 4.90918% $17,117,425
41 Xxx Xxxxx XX 00000 5.2800% 5.25918% $17,000,000
44 Xxx Xxxx XX 00000 5.9200% 5.89918% $15,000,000
46 Xxxxx XX 00000 5.0400% 5.01918% $14,300,000
47 Xxxxxxxxx XX 00000 5.2500% 5.22918% $14,000,000
48 Xxxxxxxxx XX 00000 5.7800% 5.70918% $13,760,000
00 Xxxx Xx. Xxxxx XX 00000 5.4200% 5.39918% $12,700,000
57 Xxxxxxx XX 00000 5.3800% 5.35918% $12,750,000
58 Xxxxxx XX 00000 5.0410% 4.98018% $12,080,000
63 Xxxxxx XX 00000 5.0450% 4.98418% $11,410,000
64 Xxxxxxxx XX 00000 5.2200% 5.19918% $11,400,000
66 Xxxxxxx XX 00000 5.1000% 5.07918% $11,000,000
67 Xxx Xxxx XX 00000 5.5100% 5.42918% $11,000,000
69 Xxxxx Xxxxxxx XX 00000 5.6800% 5.65918% $10,600,000
70 Xxxxxxx XX 00000 5.4000% 5.37918% $10,500,000
71 Xxxxxxxxx Xxxxx XX 00000 5.1400% 5.11918% $10,350,000
75 Xxxxxxxxxx XX 00000 5.0000% 4.91918% $9,600,000
00 Xxxxxxxx XX 00000 5.2100% 5.18918% $9,500,000
00 Xxxxx Xxx Xxxxx XX 00000 5.2350% 5.17418% $9,200,000
78 Various Various Various 5.8500% 5.82918% $9,200,000
79 Xxxxx Xxxxxxx XX 00000 5.1000% 5.07918% $9,000,000
82 Xxxxxxx XX 00000 4.7500% 4.72918% $8,750,000
83 Xxxxxx Xxxxx XX 00000 5.1000% 5.07918% $8,650,000
87 Xxxxxxxxx XX 00000 5.3800% 5.35918% $8,000,000
88 Xxxxxxxx XX 00000 5.0900% 5.06918% $8,000,000
89 Xxx Xxxx XX 00000 4.9700% 4.94918% $8,000,000
92 Xxxxxxxx XX 00000 5.3800% 5.35918% $7,750,000
95 Xxxxxxxx XX 00000 5.6900% 5.60918% $7,500,000
96 Xxxxxxxxx XX 00000 5.4500% 5.36918% $7,500,000
00 Xxxxx Xxxxx XX 00000 5.5600% 5.49918% $7,500,000
98 Xxxxxx XX 00000 5.7500% 5.72918% $7,500,000
00 Xxxx Xxxxxx XX 00000 5.2900% 5.26918% $7,400,000
000 Xxxxxxxxxx XX 00000 5.5500% 5.52918% $7,200,000
102 Xxxxxxxxxx XX 00000 5.3500% 5.32918% $4,200,000
103 Xxxxxxxxxx XX 00000 5.2500% 5.22918% $2,923,000
000 Xxxxxxxxx XX 00000 5.2100% 5.18918% $7,120,000
000 Xxxxxxxxxxx XX 00000 5.8700% 5.84918% $7,100,000
000 Xxxxxx XX 00000 5.0000% 4.93918% $3,100,000
000 Xxxxxx XX 00000 5.0000% 4.93918% $2,425,000
000 Xxxxxx XX 00000 5.0000% 4.93918% $1,475,000
000 Xxxxxxxxxxx XX 00000 6.2300% 6.20918% $6,400,000
000 Xxxxxxxx XX 00000 5.3600% 5.33918% $6,000,000
120 Xxxxxxxxxx XX 00000 5.6900% 5.66918% $6,000,000
121 Xxxxxx Xxxx XX 00000 6.0100% 5.92918% $5,800,000
125 Xxxxxx XX 00000 5.7000% 5.67918% $5,500,000
126 Xxxxxxxxxxxx XX 00000 5.8500% 5.82918% $5,500,000
127 Xxxxxxxx XX 00000 5.4600% 5.43918% $5,385,000
128 Xxxxxxx XX 00000 5.2200% 5.19918% $5,350,000
000 Xxxxxx XX 00000 5.2000% 5.13918% $5,325,000
133 Xxx Xxxx XX 00000 5.3800% 5.29918% $5,200,000
135 Xxxxxxx XX 00000 5.1100% 5.08918% $5,100,000
000 Xxxxxxxxxx XX 00000 5.1400% 5.11918% $5,000,000
000 Xxxxxxx XX 00000 5.6300% 5.60918% $4,900,000
143 Various Various Various 5.1500% 5.12918% $4,900,000
000 Xxxxxx XX 00000 4.9500% 4.88918% $4,840,000
146 Xxx Xxxx XX 00000 5.0700% 4.98918% $4,700,000
000 Xxxxxxxxxxx XX 00000 5.5000% 5.47918% $4,600,000
148 Xxxxxxxx XX 00000 5.6900% 5.66918% $4,500,000
000 Xxxxxxxxx Xxxxxxx XX 00000 5.8500% 5.82918% $3,350,000
150 Xxxxxxxx XX 00000 5.8500% 5.82918% $650,000
151 Xxxxxxxx XX 00000 5.8500% 5.82918% $500,000
000 Xxxx Xxxxxxxx XX 00000 5.3200% 5.20918% $4,450,000
155 Xxxxxxxxxx XX 00000 5.4300% 5.31918% $4,350,000
000 Xxxxxx XX 00000 5.1100% 5.08918% $4,300,000
000 Xxxxxxx XX 00000 5.4400% 5.41918% $4,300,000
000 Xxxxxxxxx XX 00000 5.5100% 5.48918% $4,200,000
000 Xxxxxxx XX 00000 5.3500% 5.32918% $4,100,000
160 Xxxxxxxxxx XX 00000 5.1800% 5.11918% $4,100,000
000 Xxxxxxxx Xxxx XX 00000 5.2600% 5.23918% $2,000,000
000 Xxxxxxxx Xxxx XX 00000 5.2600% 5.23918% $2,000,000
000 Xxxxxxxx XX 00000 5.2100% 5.18918% $4,000,000
170 Xxxxxx XX 00000 5.4500% 5.42918% $3,650,000
000 Xxxxxx XX 00000 5.1400% 5.11918% $3,620,000
174 Xxxxxx XX 00000 4.9900% 4.96918% $3,440,000
000 Xxxxxxx XX 00000 5.2100% 5.18918% $3,425,000
000 Xxxxxx XX 00000 5.1900% 5.16918% $3,300,000
000 Xxxxxxxx XX 00000 5.3900% 5.30918% $3,250,000
000 Xxxxxxxxxxx XX 00000 4.9200% 4.89918% $3,250,000
182 Xxxxx XX 00000 4.9600% 4.93918% $3,200,000
183 Xxxxxxxx XX 00000 5.1300% 5.10918% $3,180,000
000 Xxxxxxxxx XX 00000 5.2500% 5.22918% $3,000,000
190 Xxx Xxxx XX 00000 6.1000% 6.01918% $3,000,000
191 Xxxxxx XX 00000 5.3200% 5.29918% $2,960,000
192 Xxxxxxxx XX 00000 4.8700% 4.84918% $2,920,000
193 Xxxxxxxxxxxx XX 00000 5.3600% 5.33918% $2,900,000
000 Xxxxx XX 00000 5.2500% 5.22918% $2,875,000
197 Xxx Xxxx XX 00000 6.1100% 6.02918% $2,800,000
000 Xxxxxxxx XX 00000 5.3300% 5.24918% $2,800,000
000 Xxxxx XX 00000 5.4000% 5.37918% $2,750,000
000 Xxxxxx XX 00000 5.6300% 5.60918% $2,750,000
000 Xxxxxxxxxx XX 00000 5.7700% 5.67918% $2,560,000
000 Xxxxxxxx XX 00000 5.0800% 5.05918% $2,500,000
000 Xxxxxxx Xxxxxxx XX 00000 5.3000% 5.21918% $2,500,000
000 Xxxxxxxxx XX 00000 5.6600% 5.63918% $2,500,000
000 Xxxxxx Xxxxx XX 00000 5.2200% 5.19918% $2,400,000
000 Xxxx Xxxxxxxx XX 00000 5.5600% 5.47918% $2,400,000
211 Xxxx Xxxxx XX 00000 5.2300% 5.20918% $2,400,000
213 Xxx Xxxxxxx XX 00000 5.3500% 5.32918% $2,350,000
000 Xxxxxxx Xxxx XX 00000 5.5500% 5.52918% $2,300,000
000 Xxx Xxxxxx XX 00000 5.3600% 5.33918% $2,265,000
216 Xxx Xxxx XX 00000 5.5300% 5.44918% $2,250,000
000 Xxxx XX 00000 5.5600% 5.53918% $2,250,000
000 Xxxxxxx XX 00000 5.6800% 5.59918% $2,250,000
000 Xxxxxx XX 00000 5.3400% 5.31918% $2,230,000
220 Xxx Xxxx XX 00000 5.3900% 5.30918% $2,200,000
000 Xxxxxx XX 00000 5.7500% 5.72918% $2,200,000
000 Xxxxxxxxx XX 00000 5.3800% 5.35918% $2,200,000
000 Xxx Xxxxxx XX 00000 5.4800% 5.45918% $2,100,000
000 Xxxxxxxxxxxx XX 00000 5.1000% 5.03918% $2,040,000
000 Xxx Xxxxxx XX 00000 5.4000% 5.37918% $2,050,000
230 Xxx Xxxx XX 00000 6.3300% 6.24918% $2,000,000
000 Xx. Xxxxxx XX 00000 5.7200% 5.69918% $1,960,000
232 Xxx Xxxx XX 00000 5.1000% 5.01918% $1,900,000
000 Xxxxx XX 00000 5.9500% 5.92918% $1,900,000
235 Xxx Xxxx XX 00000 5.0700% 4.98918% $1,900,000
236 Xxx Xxxx XX 00000 5.7300% 5.64918% $1,900,000
237 Xxxxxxxxxxx XX 00000 5.2100% 5.18918% $1,900,000
239 Xxxxxxxxxxxx XX 00000 5.4000% 5.37918% $1,820,000
000 Xxxx Xxxx XX 00000 5.2700% 5.24918% $1,800,000
000 Xxxxxxx XX 00000 5.3700% 5.34918% $1,800,000
243 Xxx Xxxx XX 00000 5.4700% 5.38918% $1,800,000
000 Xxxxxxxxx XX 00000 5.5300% 5.50918% $1,750,000
245 Xxx Xxxx XX 00000 5.9400% 5.85918% $1,750,000
246 Xxxxxxxxx XX 00000 5.6800% 5.65918% $1,700,000
249 Xxxxxxxx Xxxxxxx XX 00000 5.5800% 5.55918% $1,650,000
250 Various Various Various 5.3900% 5.36918% $1,628,000
251 Xxxxx XX 00000 5.9500% 5.92918% $1,600,000
000 Xxxxxx XX 00000 5.9800% 5.95918% $1,537,500
000 Xxxxxxxxxxxxxxx XX 00000 5.3500% 5.23918% $1,500,000
000 Xxxxxxxx XX 00000 5.6400% 5.61918% $1,500,000
258 Xxxxx Xxxx XX 00000 5.2000% 5.17918% $1,425,000
260 Xxxxxxx Xxxx XX 00000 5.9000% 5.87918% $1,315,000
000 Xxxxx Xxxxxxxxx XX 00000 5.3300% 5.30918% $1,300,000
000 Xxxxxxxxxx XX 00000 5.5000% 5.47918% $1,300,000
000 Xxxxxx Xxxxxxx XX 00000 5.1600% 5.09918% $1,240,000
264 Xxxxxxxx XX 00000 5.3100% 5.28918% $1,225,000
000 Xxxxxxxxx XX 00000 5.7400% 5.71918% $1,200,000
000 Xxxxxxxxxxx XX 00000 5.5200% 5.49918% $1,200,000
000 Xx Xxxx XX 00000 5.5000% 5.47918% $1,180,000
000 Xxxxxxx XX 00000 5.4700% 5.44918% $1,130,000
270 Xxx Xxxx XX 00000 5.9000% 5.87918% $1,100,000
000 Xxxxxxxxxxxx XX 00000 5.6700% 5.64918% $1,100,000
000 Xxxxxxxxx XX 00000 5.5300% 5.50918% $1,050,000
000 Xxxxxx Xxxxx XX 00000 5.7000% 5.67918% $1,020,000
000 Xxxxxxxx XX 00000 5.8200% 5.79918% $1,000,000
000 Xxxxxx XX 00000 5.4800% 5.36918% $1,000,000
000 Xx. Xxxxxx XX 00000 5.6600% 5.63918% $950,000
000 Xxxxxxxxxx XX 00000 5.3500% 5.32918% $850,000
000 Xxxxxx XX 00000 5.6400% 5.61918% $850,000
280 Xxxxxxxx XX 00000 5.6600% 5.63918% $700,000
Rem. Orig Rem.
Cut-off Term to Maturity Amort. Amort.
# Balance Maturity Date ARD Term Term
-------------------------------------------------------------------------------------------
1 $273,800,000 360 8/11/2015 N/A 360 360
2 $170,000,000 360 3/11/2015 N/A 360 360
3 $82,300,000 Interest Only 7/8/2015 N/A Interest Only Interest Only
6 $65,000,000 360 1/11/2015 N/A 360 360
8 $62,500,000 360 8/11/2015 N/A 360 360
9 $55,000,000 300 7/11/2015 N/A 300 300
10 $45,400,000 Interest Only 6/11/2035 6/11/2015 Interest Only Interest Only
14 $40,000,000 360 7/11/2013 N/A 360 360
15 $13,664,547 355 6/11/2015 N/A 360 355
16 $13,594,880 355 6/11/2015 N/A 360 355
17 $12,549,886 355 6/11/2015 N/A 360 355
20 $34,000,000 360 9/11/2015 N/A 360 360
21 $31,000,000 360 6/11/2015 N/A 360 360
22 $31,000,000 360 9/11/2015 N/A 360 360
23 $28,941,151 476 7/1/2020 N/A 480 476
24 $24,000,000 360 8/11/2015 N/A 360 360
26 $22,500,000 360 7/11/2015 N/A 360 360
27 $21,650,000 360 9/11/2015 N/A 360 360
33 $19,941,230 357 8/11/2015 N/A 360 357
34 $18,600,000 360 12/11/2012 N/A 360 360
35 $18,500,000 360 8/11/2035 8/11/2015 360 360
36 $18,000,000 360 10/11/2015 N/A 360 360
37 $18,000,000 Interest Only 10/11/2015 N/A Interest Only Interest Only
40 $17,117,425 Interest Only 6/11/2012 N/A Interest Only Interest Only
41 $17,000,000 360 7/11/2012 N/A 360 360
44 $15,000,000 300 9/11/2015 N/A 300 300
46 $14,300,000 360 7/11/2015 N/A 360 360
47 $14,000,000 360 7/11/2015 N/A 360 360
48 $13,709,120 356 7/11/2035 7/11/2020 360 356
55 $12,661,312 357 9/11/2015 N/A 360 357
57 $12,636,216 236 7/11/2010 N/A 240 236
58 $12,080,000 360 6/11/2015 N/A 360 360
63 $11,410,000 360 6/11/2015 N/A 360 360
64 $11,375,295 358 9/11/2015 N/A 360 358
66 $11,000,000 360 7/11/2015 N/A 360 360
67 $10,930,643 354 5/1/2015 N/A 360 354
69 $10,600,000 355 8/11/2015 N/A 355 355
70 $10,484,971 299 10/11/2015 N/A 300 299
71 $10,350,000 360 7/11/2015 N/A 360 360
75 $9,567,926 357 7/11/2015 N/A 360 357
76 $9,479,369 358 9/11/2015 N/A 360 358
77 $9,200,000 360 9/11/2015 N/A 360 360
78 $9,166,541 356 7/11/2015 N/A 360 356
79 $9,000,000 360 7/11/2015 N/A 360 360
82 $8,750,000 360 8/11/2015 N/A 360 360
83 $8,650,000 360 8/11/2015 N/A 360 360
87 $8,000,000 360 9/11/2015 N/A 360 360
88 $7,982,183 358 9/11/2015 N/A 360 358
89 $7,973,098 357 9/11/2015 N/A 360 357
92 $7,718,557 356 7/11/2010 N/A 360 356
95 $7,490,039 477 8/1/2015 N/A 480 477
96 $7,470,867 473 4/1/2020 N/A 480 473
97 $7,470,803 356 6/11/2015 N/A 360 356
98 $7,458,310 296 7/11/2015 N/A 300 296
99 $7,377,238 298 8/11/2015 N/A 300 298
100 $7,142,142 352 4/11/2015 N/A 360 352
102 $4,200,000 360 7/11/2015 N/A 360 360
103 $2,923,000 360 8/11/2015 N/A 360 360
104 $7,120,000 360 6/11/2015 N/A 360 360
105 $7,030,418 293 4/11/2015 N/A 300 293
106 $3,100,000 360 6/11/2015 N/A 360 360
107 $2,425,000 360 6/11/2015 N/A 360 360
108 $1,475,000 360 6/11/2015 N/A 360 360
112 $6,375,345 297 8/11/2015 N/A 300 297
116 $6,000,000 360 8/11/2015 N/A 360 360
120 $5,966,287 296 7/11/2015 N/A 300 296
121 $5,767,004 354 5/1/2020 N/A 360 354
125 $5,484,210 298 9/11/2015 N/A 300 298
126 $5,477,310 297 8/11/2015 N/A 300 297
127 $5,352,256 354 5/11/2015 N/A 360 354
128 $5,350,000 360 7/11/2015 N/A 360 360
129 $5,307,968 357 8/11/2015 N/A 360 357
133 $5,200,000 Interest Only 7/1/2015 N/A Interest Only Interest Only
135 $5,100,000 360 7/11/2015 N/A 360 360
138 $4,978,588 356 7/11/2035 7/11/2015 360 356
141 $4,900,000 360 6/11/2012 N/A 360 360
143 $4,866,105 237 9/11/2015 N/A 240 237
144 $4,840,000 360 6/11/2015 N/A 360 360
146 $4,688,937 476 7/1/2015 N/A 480 476
147 $4,579,817 297 8/11/2015 N/A 300 297
148 $4,491,184 358 9/11/2015 N/A 360 358
149 $3,326,665 295 7/11/2015 N/A 300 295
150 $645,472 295 7/11/2015 N/A 300 295
151 $497,659 355 7/11/2015 N/A 360 355
152 $4,450,000 360 7/11/2015 N/A 360 360
155 $4,332,552 356 7/11/2015 N/A 360 356
156 $4,300,000 360 7/11/2015 N/A 360 360
157 $4,300,000 360 5/11/2015 N/A 360 360
158 $4,183,460 356 7/11/2015 N/A 360 356
159 $4,100,000 360 4/11/2015 N/A 360 360
160 $4,077,749 355 7/11/2015 N/A 360 355
163 $1,993,687 357 8/11/2015 N/A 360 357
164 $1,993,687 357 8/11/2015 N/A 360 357
165 $3,987,234 357 8/11/2015 N/A 360 357
170 $3,650,000 360 7/11/2015 N/A 360 360
171 $3,612,022 358 8/11/2015 N/A 360 358
174 $3,440,000 360 9/11/2015 N/A 360 360
175 $3,425,000 360 6/11/2015 N/A 360 360
179 $3,282,129 355 6/11/2015 N/A 360 355
180 $3,240,940 475 6/1/2015 N/A 480 475
181 $3,238,953 357 8/11/2015 N/A 360 357
182 $3,200,000 Interest Only 8/11/2015 N/A Interest Only Interest Only
183 $3,169,671 357 8/11/2015 N/A 360 357
189 $2,976,842 295 6/11/2015 N/A 300 295
190 $2,970,022 350 1/1/2015 N/A 360 350
191 $2,950,780 357 8/11/2015 N/A 360 357
192 $2,920,000 360 8/11/2015 N/A 360 360
193 $2,900,000 360 7/11/2015 N/A 360 360
194 $2,855,366 237 8/11/2015 N/A 240 237
197 $2,788,887 472 3/1/2015 N/A 480 472
198 $2,773,776 294 5/1/2015 N/A 300 294
199 $2,741,585 357 8/11/2015 N/A 360 357
200 $2,730,883 353 4/11/2015 N/A 360 353
201 $2,545,488 354 5/11/2015 N/A 360 354
204 $2,489,150 356 7/11/2015 N/A 360 356
205 $2,486,201 355 6/1/2015 N/A 360 355
206 $2,485,877 296 7/11/2015 N/A 300 296
209 $2,394,799 358 9/11/2015 N/A 360 358
210 $2,393,633 475 6/1/2015 N/A 480 475
211 $2,392,374 357 8/11/2015 N/A 360 357
213 $2,337,706 355 7/11/2015 N/A 360 355
214 $2,293,227 298 9/11/2015 N/A 300 298
215 $2,265,000 360 7/11/2015 N/A 360 360
216 $2,250,000 Interest Only 6/1/2015 N/A Interest Only Interest Only
217 $2,241,241 356 7/11/2015 N/A 360 356
218 $2,237,984 355 6/1/2015 N/A 360 355
219 $2,230,000 360 7/11/2015 N/A 360 360
220 $2,200,000 Interest Only 6/1/2015 N/A Interest Only Interest Only
222 $2,193,782 357 8/11/2015 N/A 360 357
223 $2,190,144 297 8/11/2015 N/A 300 297
226 $2,091,673 356 7/11/2015 N/A 360 356
228 $2,040,000 360 8/11/2015 N/A 360 360
229 $2,039,392 355 7/11/2015 N/A 360 355
230 $1,990,601 470 1/1/2015 N/A 480 470
231 $1,952,649 356 7/11/2010 N/A 360 356
232 $1,900,000 Interest Only 6/1/2015 N/A Interest Only Interest Only
234 $1,894,873 357 7/11/2015 N/A 360 357
235 $1,894,193 475 6/1/2015 N/A 480 475
236 $1,892,338 472 3/1/2015 N/A 480 472
237 $1,876,023 118 10/11/2015 N/A 120 118
239 $1,816,204 358 9/11/2015 N/A 360 358
240 $1,800,000 360 8/11/2015 N/A 360 360
241 $1,796,221 358 9/11/2015 N/A 360 358
243 $1,792,805 415 6/1/2015 N/A 420 415
244 $1,741,199 355 6/11/2015 N/A 360 355
245 $1,733,831 351 2/1/2015 N/A 360 351
246 $1,691,731 355 6/11/2015 N/A 360 355
249 $1,643,606 356 8/11/2015 N/A 360 356
250 $1,623,007 357 8/11/2015 N/A 360 357
251 $1,595,683 357 7/11/2015 N/A 360 357
254 $1,534,675 358 9/11/2015 N/A 360 358
255 $1,500,000 360 7/11/2015 N/A 360 360
257 $1,495,652 357 8/11/2015 N/A 360 357
258 $1,417,299 355 6/11/2015 N/A 360 355
260 $1,303,394 351 2/11/2015 N/A 360 351
261 $1,300,000 360 8/11/2015 N/A 360 360
262 $1,296,110 357 8/11/2015 N/A 360 357
263 $1,234,713 356 8/11/2015 N/A 360 356
264 $1,221,176 357 8/11/2012 N/A 360 357
265 $1,198,936 359 10/11/2015 N/A 360 359
266 $1,193,952 355 7/11/2015 N/A 360 355
267 $1,174,750 238 9/11/2015 N/A 240 238
269 $1,127,678 358 9/11/2015 N/A 360 358
270 $1,096,997 357 8/11/2015 N/A 360 357
271 $1,095,315 297 8/11/2015 N/A 300 297
272 $1,044,719 355 6/11/2015 N/A 360 355
273 $1,013,430 237 8/11/2015 N/A 240 237
274 $999,131 359 10/11/2015 N/A 360 359
275 $997,020 298 9/11/2015 N/A 300 298
276 $944,633 296 7/11/2015 N/A 300 296
278 $847,370 357 8/11/2015 N/A 360 357
279 $844,091 178 9/11/2020 N/A 180 178
280 $696,046 296 7/11/2015 N/A 300 296
Units/
Sq. Ft./
Monthly Rooms/ Interest Calculation Administration
# Payment Pads (30/360 / Actual/360) Fees Due Date ARD (Y/N)
--------------------------------------------------------------------------------------------
1 $1,365,720 791,993 Actual/360 0.02082% 11 No
2 $918,736 621,291 Actual/360 0.02082% 11 No
3 $342,506 677,376 Actual/360 0.02082% 8 No
6 $358,932 310 Actual/360 0.02082% 11 No
8 $352,519 481 Actual/360 0.02082% 11 No
9 $330,236 545,025 Actual/360 0.02082% 11 No
10 $191,104 157,932 Actual/360 0.05082% 11 Yes
14 $223,365 313,802 Actual/360 0.02082% 11 No
15 $80,299 402 Actual/360 0.02082% 11 No
16 $79,890 402 Actual/360 0.02082% 11 No
17 $73,749 302 Actual/360 0.02082% 11 No
20 $186,488 442 Actual/360 0.02082% 11 No
21 $179,924 537,716 Actual/360 0.06082% 11 No
22 $169,842 243,204 Actual/360 0.02082% 11 No
23 $152,089 787 Actual/360 0.08082% 1 No
24 $130,455 173,148 Actual/360 0.02082% 11 No
26 $130,733 316 Actual/360 0.02082% 11 No
27 $118,749 336 Actual/360 0.02082% 11 No
33 $114,564 390,000 Actual/360 0.02082% 11 No
34 $103,865 280 Actual/360 0.02082% 11 No
35 $98,297 153,190 Actual/360 0.02082% 11 Yes
36 $99,749 4,600 Actual/360 0.02082% 11 No
37 $78,323 360 Actual/360 0.02082% 11 No
40 $71,301 144,152 Actual/360 0.02082% 11 No
41 $94,191 93,194 Actual/360 0.02082% 11 No
44 $95,913 140 Actual/360 0.02082% 11 No
46 $77,115 90,804 Actual/360 0.02082% 11 No
47 $77,309 260 Actual/360 0.02082% 11 No
48 $80,562 141,480 Actual/360 0.07082% 11 Yes
55 $71,473 140,288 Actual/360 0.02082% 11 No
57 $86,844 130 Actual/360 0.02082% 11 No
58 $65,151 31,357 Actual/360 0.06082% 11 No
63 $61,566 35,898 Actual/360 0.06082% 11 No
64 $62,740 45,801 Actual/360 0.02082% 11 No
66 $59,724 51,406 Actual/360 0.02082% 11 No
67 $63,055 249 Actual/360 0.08082% 1 No
69 $61,724 25,501 Actual/360 0.02082% 11 No
70 $63,854 126,396 Actual/360 0.02082% 11 No
71 $56,450 119,918 Actual/360 0.02082% 11 No
75 $51,535 184 Actual/360 0.08082% 11 No
76 $52,224 137,081 Actual/360 0.02082% 11 No
77 $50,717 38,331 Actual/360 0.06082% 11 No
78 $54,275 76,914 Actual/360 0.02082% 11 No
79 $48,865 44,120 Actual/360 0.02082% 11 No
82 $45,644 150 Actual/360 0.02082% 11 No
83 $46,965 54,749 Actual/360 0.02082% 11 No
87 $44,823 200 Actual/360 0.02082% 11 No
88 $43,387 111 Actual/360 0.02082% 11 No
89 $42,799 122,100 Actual/360 0.02082% 11 No
92 $43,422 308 Actual/360 0.02082% 11 No
95 $39,657 222 Actual/360 0.08082% 1 No
96 $38,814 213 Actual/360 0.08082% 1 No
97 $42,867 78,139 Actual/360 0.06082% 11 No
98 $47,183 80 Actual/360 0.02082% 11 No
99 $44,519 98,781 Actual/360 0.02082% 11 No
100 $41,107 85,848 Actual/360 0.02082% 11 No
102 $23,453 128 Actual/360 0.02082% 11 No
103 $16,141 86 Actual/360 0.02082% 11 No
104 $39,141 184 Actual/360 0.02082% 11 No
105 $45,183 122 Actual/360 0.02082% 11 No
106 $16,641 11,000 Actual/360 0.06082% 11 No
107 $13,018 10,423 Actual/360 0.06082% 11 No
108 $7,918 3,993 Actual/360 0.06082% 11 No
112 $42,140 90 Actual/360 0.02082% 11 No
116 $33,542 125 Actual/360 0.02082% 11 No
120 $37,529 90 Actual/360 0.02082% 11 No
121 $35,123 320 Actual/360 0.08082% 1 No
125 $34,435 90 Actual/360 0.02082% 11 No
126 $34,934 88 Actual/360 0.02082% 11 No
127 $30,440 146 Actual/360 0.02082% 11 No
128 $29,444 40,211 Actual/360 0.02082% 11 No
129 $29,240 80,600 Actual/360 0.06082% 11 No
133 $23,637 156 Actual/360 0.08082% 1 No
135 $27,722 92 Actual/360 0.02082% 11 No
138 $27,271 75 Actual/360 0.02082% 11 Yes
141 $28,223 156 Actual/360 0.02082% 11 No
143 $32,745 334 Actual/360 0.02082% 11 No
144 $25,834 19,822 Actual/360 0.06082% 11 No
146 $23,102 140 Actual/360 0.08082% 1 No
147 $28,248 225,515 Actual/360 0.02082% 11 No
148 $26,090 48 Actual/360 0.02082% 11 No
149 $21,278 32,470 Actual/360 0.02082% 11 No
150 $4,129 11,918 Actual/360 0.02082% 11 No
151 $2,950 30 Actual/360 0.02082% 11 No
152 $24,766 60,428 Actual/360 0.11082% 11 No
155 $24,508 50,184 Actual/360 0.11082% 11 No
156 $23,373 73 Actual/360 0.02082% 11 No
157 $24,253 166 Actual/360 0.02082% 11 No
158 $23,874 26,587 Actual/360 0.02082% 11 No
159 $22,895 57 Actual/360 0.02082% 11 No
160 $22,463 120 Actual/360 0.06082% 11 No
163 $11,056 13,496 Actual/360 0.02082% 11 No
164 $11,056 13,831 Actual/360 0.02082% 11 No
165 $21,989 120 Actual/360 0.02082% 11 No
170 $20,610 120,524 Actual/360 0.02082% 11 No
171 $19,744 49,800 Actual/360 0.02082% 11 No
174 $18,446 17,930 Actual/360 0.02082% 11 No
175 $18,828 16,029 Actual/360 0.02082% 11 No
179 $18,100 15,920 Actual/360 0.02082% 11 No
180 $16,685 131 Actual/360 0.08082% 1 No
181 $17,288 46,689 Actual/360 0.02082% 11 No
182 $13,410 103 Actual/360 0.02082% 11 No
183 $17,324 48,194 Actual/360 0.02082% 11 No
189 $17,977 66 Actual/360 0.02082% 11 No
190 $18,180 73 30/360 0.08082% 1 No
191 $16,474 15,507 Actual/360 0.02082% 11 No
192 $15,444 72 Actual/360 0.02082% 11 No
193 $16,212 108,266 Actual/360 0.02082% 11 No
194 $19,373 24,464 Actual/360 0.02082% 11 No
197 $15,621 60 30/360 0.08082% 1 No
198 $17,034 127 Actual/360 0.08082% 1 No
199 $15,442 46,657 Actual/360 0.02082% 11 No
200 $15,839 72 Actual/360 0.02082% 11 No
201 $14,972 96 Actual/360 0.09082% 11 No
204 $13,543 200 Actual/360 0.02082% 11 No
205 $13,997 209 Actual/360 0.08082% 1 No
206 $15,592 180 Actual/360 0.02082% 11 No
209 $13,208 20,504 Actual/360 0.02082% 11 No
210 $12,603 86 Actual/360 0.08082% 1 No
211 $13,223 7,902 Actual/360 0.02082% 11 No
213 $13,123 25 Actual/360 0.02082% 11 No
214 $14,193 56,700 Actual/360 0.02082% 11 No
215 $12,662 10,993 Actual/360 0.02082% 11 No
216 $10,369 25 30/360 0.08082% 1 No
217 $12,860 12,000 Actual/360 0.02082% 11 No
218 $13,031 129 30/360 0.08082% 1 No
219 $12,439 45 Actual/360 0.02082% 11 No
220 $9,882 23 30/360 0.08082% 1 No
222 $12,839 13,350 Actual/360 0.02082% 11 No
223 $13,353 28,385 Actual/360 0.02082% 11 No
226 $11,897 100 Actual/360 0.02082% 11 No
228 $11,076 20,939 Actual/360 0.06082% 11 No
229 $11,511 5,400 Actual/360 0.02082% 11 No
230 $11,468 62 30/360 0.08082% 1 No
231 $11,401 154 Actual/360 0.02082% 11 No
232 $8,187 13 Actual/360 0.08082% 1 No
234 $11,330 32,470 Actual/360 0.02082% 11 No
235 $9,339 20 Actual/360 0.08082% 1 No
236 $10,203 20 Actual/360 0.08082% 1 No
237 $20,348 164 Actual/360 0.02082% 11 No
239 $10,220 28 Actual/360 0.02082% 11 No
240 $9,962 48 Actual/360 0.02082% 11 No
241 $10,074 20 Actual/360 0.02082% 11 No
243 $9,631 60 30/360 0.08082% 1 No
244 $9,969 13,200 Actual/360 0.02082% 11 No
245 $10,517 48 Actual/360 0.08082% 1 No
246 $9,845 12,862 Actual/360 0.02082% 11 No
249 $9,452 12,000 Actual/360 0.02082% 11 No
250 $9,132 62 Actual/360 0.02082% 11 No
251 $9,541 18,820 Actual/360 0.02082% 11 No
254 $9,198 14,378 Actual/360 0.02082% 11 No
255 $8,376 20 Actual/360 0.11082% 11 No
257 $8,649 60 Actual/360 0.02082% 11 No
258 $7,825 66 Actual/360 0.02082% 11 No
260 $7,800 84 Actual/360 0.02082% 11 No
261 $7,243 22,000 Actual/360 0.02082% 11 No
262 $7,381 37 Actual/360 0.02082% 11 No
263 $6,778 6,010 Actual/360 0.06082% 11 No
264 $6,810 22 Actual/360 0.02082% 11 No
265 $6,995 18 Actual/360 0.02082% 11 No
266 $6,829 14,295 Actual/360 0.02082% 11 No
267 $8,117 30,979 Actual/360 0.02082% 11 No
269 $6,395 13,125 Actual/360 0.02082% 11 No
270 $6,525 2 Actual/360 0.02082% 11 No
271 $6,867 16,310 Actual/360 0.02082% 11 No
272 $5,982 4 Actual/360 0.02082% 11 No
273 $7,132 43 Actual/360 0.02082% 11 No
274 $5,880 20 Actual/360 0.02082% 11 No
275 $6,129 52,443 Actual/360 0.11082% 11 No
276 $5,925 71 Actual/360 0.02082% 11 No
278 $4,747 20 Actual/360 0.02082% 11 No
279 $7,009 78 Actual/360 0.02082% 11 No
280 $4,366 70 Actual/360 0.02082% 11 No
Earthquake Environmental Fee/ Letter of Loan Group
# Defeasance Insurance Insurance Leasehold Credit (Y/N) #
-----------------------------------------------------------------------------------------
1 Yes N/A No Fee No 1
2 Yes N/A No Fee No 1
3 Yes N/A No Fee No 1
6 Yes N/A No Fee No 1
8 Yes N/A No Fee No 1
9 Yes N/A No Fee/Leasehold No 1
10 Yes N/A No Fee No 1
14 Yes N/A No Fee No 1
15 Yes N/A No Fee No 2
16 Yes N/A No Fee No 2
17 Yes N/A No Fee No 2
20 Yes N/A No Fee No 2
21 Yes N/A No Fee No 1
22 Yes N/A No Fee No 1
23 Yes N/A No Fee No 2
24 Yes N/A No Fee No 1
26 Yes N/A No Fee No 2
27 Yes N/A No Fee No 2
33 Yes N/A No Fee No 1
34 Yes N/A No Fee No 2
35 Yes N/A No Fee No 1
36 Yes N/A No Fee Yes 1
37 Yes N/A No Fee No 2
40 Yes N/A No Fee No 1
41 Yes N/A No Fee No 1
44 Yes N/A No Fee No 1
46 Yes N/A No Fee No 1
47 Yes N/A No Fee No 2
48 Yes N/A No Fee No 1
55 Yes N/A No Fee No 1
57 Yes N/A No Fee No 1
58 Yes N/A No Fee No 1
63 Yes N/A No Fee No 1
64 Yes N/A No Fee No 1
66 Yes N/A No Fee No 1
67 Yes N/A No Fee No 1
69 Yes N/A No Fee No 1
70 Yes N/A No Fee No 1
71 Yes N/A No Fee No 1
75 Yes N/A No Fee No 2
76 Yes N/A No Fee No 1
77 Yes N/A No Fee No 1
78 Yes N/A No Fee No 1
79 Yes N/A No Fee No 1
82 Yes N/A No Fee No 2
83 Yes N/A No Fee No 1
87 Yes N/A No Fee No 2
88 Yes N/A No Fee No 2
89 Yes N/A No Fee No 1
92 Yes N/A No Fee No 2
95 No N/A No Fee No 2
96 No N/A No Fee No 1
97 Yes N/A No Fee No 1
98 Yes N/A No Fee No 1
99 Yes N/A No Fee No 1
100 Yes N/A No Fee No 1
102 Yes N/A No Fee No 2
103 Yes N/A Yes Fee No 2
104 Yes N/A No Fee No 2
105 Yes N/A No Fee No 1
106 Yes N/A No Fee No 1
107 Yes N/A No Fee No 1
108 Yes N/A No Fee No 1
112 Yes N/A No Fee No 1
116 Yes N/A No Fee No 2
120 Yes N/A No Fee No 1
121 No N/A No Fee No 2
125 Yes N/A No Fee No 1
126 Yes N/A No Fee No 1
127 Yes N/A No Fee No 2
128 Yes N/A No Fee No 1
129 Yes N/A No Fee No 1
133 No N/A No Fee No 1
135 Yes N/A No Fee No 2
138 Yes N/A No Fee No 2
141 Yes N/A No Fee No 2
143 Yes N/A No Fee No 1
144 Yes N/A No Fee No 1
146 Yes N/A No Fee No 1
147 Yes N/A No Fee No 1
148 Yes N/A No Fee No 2
149 Yes N/A Yes Fee No 1
150 Yes N/A Yes Fee No 1
151 Yes N/A Yes Fee No 1
152 Yes N/A No Fee No 1
155 Yes N/A No Fee No 1
156 Yes N/A No Fee No 2
157 Yes N/A No Fee No 2
158 Yes N/A No Fee No 1
159 Yes N/A No Fee Yes 2
160 Yes N/A No Fee No 2
163 Yes N/A No Fee No 1
164 Yes N/A No Fee No 1
165 Yes N/A No Fee No 2
170 Yes N/A No Fee No 1
171 Yes N/A No Fee No 1
174 Yes N/A No Fee No 1
175 Yes N/A No Fee No 1
179 No N/A Yes Fee No 1
180 No N/A No Fee No 1
181 Yes N/A Yes Fee No 1
182 Yes N/A Yes Fee No 2
183 Yes N/A No Fee No 1
189 Yes N/A No Fee No 1
190 No N/A No Fee No 1
191 Yes N/A No Fee No 1
192 Yes N/A Yes Fee No 2
193 Yes N/A No Fee No 1
194 Yes N/A No Fee No 1
197 No N/A No Fee No 1
198 No N/A No Fee No 1
199 Yes N/A Yes Fee No 1
200 Yes N/A No Fee No 2
201 Yes N/A No Fee No 2
204 Yes N/A Yes Fee No 2
205 No N/A No Fee No 2
206 Yes N/A Yes Fee No 1
209 Yes N/A Yes Fee No 1
210 No N/A No Fee No 1
211 Yes N/A No Fee No 1
213 Yes N/A Yes Fee No 2
214 Yes N/A Yes Fee No 1
215 Yes N/A No Fee No 1
216 No N/A No Fee No 1
217 Yes N/A Yes Fee No 1
218 No N/A No Fee No 2
219 Yes N/A Yes Fee No 2
220 No N/A No Fee No 1
222 Yes N/A Yes Fee No 1
223 No N/A Yes Fee No 1
226 Yes N/A No Fee No 2
228 Yes N/A No Fee No 1
229 Yes N/A Yes Fee No 1
230 Yes N/A No Fee No 1
231 Yes N/A Yes Fee No 2
232 No N/A No Fee No 1
234 Yes N/A Yes Fee No 1
235 No N/A No Fee No 1
236 No N/A No Fee No 1
237 Yes N/A Yes Fee No 1
239 Yes N/A Yes Fee No 2
240 Yes N/A Yes Fee No 2
241 Yes N/A Yes Fee No 2
243 No N/A No Fee No 1
244 No N/A Yes Fee No 1
245 No N/A No Fee No 1
246 Yes N/A No Fee No 1
249 No N/A No Fee No 1
250 Yes N/A Yes Fee No 2
251 Yes N/A Yes Fee No 1
254 Yes N/A Yes Fee No 1
255 Yes N/A Yes Fee No 2
257 No N/A Yes Fee No 2
258 Yes N/A No Fee No 2
260 Yes N/A Yes Fee No 1
261 Yes N/A No Fee No 1
262 Yes N/A Yes Fee No 2
263 Yes N/A Yes Fee No 1
264 Yes N/A Yes Fee No 2
265 Yes N/A No Fee No 2
266 Yes N/A Yes Fee No 1
267 Yes N/A Yes Fee No 1
269 No N/A No Fee Yes 1
270 Yes N/A No Fee No 1
271 Yes N/A Yes Fee No 1
272 No N/A Yes Fee No 1
273 Yes N/A Yes Fee No 2
274 Yes N/A Yes Fee No 1
275 Yes N/A No Leasehold No 1
276 Yes N/A Yes Fee No 1
278 Yes N/A No Fee No 2
279 Yes N/A No Fee No 2
280 Yes N/A Yes Fee/Leasehold No 1
SCHEDULE III
MORTGAGE LOANS CONSTITUTING MORTGAGE GROUPS
1. Staten (Park Hill I)
Staten (Park Hill II)
Staten (St. George's)
2. El Dorado MHP
El Dorado West MHP
3. Bank United Building
Coldwell Banker Building
Northern Trust Bank Building
4. Bank Block Center
Grandview Avenue
Windsor Arms Apartments
5. Xx. Xxxxxxx Xxxxxxxx Xx. 000
Xx. Xxxxxxx Building No. 558
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO SELLER'S
REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in
Exhibit A attached hereto corresponding to the paragraph numbers set forth
below:
Exception to paragraph (xv)
Black Canyon & Red Mountain Office Buildings
The Borrower has been notified by the City of Phoenix that a small portion of
the Mortgaged Property may be subject to condemnation (or sale in lieu thereof)
to accommodate an expansion of the city's light rail system. The portion of the
Mortgaged Property that may be condemned is a narrow strip of unimproved land
with no rentable improvements or parking spaces. If such condemnation takes
place Borrower plans on using the proceeds received for certain minor
restoration requirements.
Exception to paragraph (xxi)
Jupiter Park Apartments
This representation is true and correct except that the related Borrower
provided an evergreen letter of credit in an amount sufficient to pay 50% of the
annual property taxes on the Mortgaged Property in lieu of funding an escrow
account with cash.
Exception to paragraph (xxiii)
Shoppes at Acworth
The business interruption insurance is only currently required to cover Phase I
of the Mortgaged Property. Once a certificate of occupancy is issued for Phase
II, the business interruption insurance will be required to cover the entire
Mortgaged Property. To date, Phase II has not been completed but thus far, 45%
of this section of the Mortgaged Property has been pre-leased.
Exception to paragraph (xxvii)
Del Monte Center
The Environmental Report indicates that the Mortgaged Property soil and
groundwater appears to be contaminated with certain hazardous substances
including PCE. In 1997, the Borrower entered into an agreement with Arcadis G&M,
Inc. to remediate the property and since then established a sizeable reserve
with Arcadis for such clean-up. Additionally, Borrower has obtained a Property
Transfer Liability Policy to provide coverage for cleanup costs and third party
liability.
Exceptions to paragraph (xxviii)
Chesapeake Park Plaza
The borrower is owned by certain tenants-in-common. Standard transfer
restrictions apply except that transfers of the interests in the constituents of
borrower or any tenants-in-common are permitted up to an aggregate of 60%
interest as long as any new owner holding more than 33% satisfies certain credit
requirements. Certain additional transfers among the various tenants in common
are permitted provided certain provisions of the loan documents are satisfied.
Black Canyon & Red Mountain Buildings
The borrower is owned by certain tenants-in-common. Standard transfer
restrictions apply except that transfers of the interests in the constituents of
borrower or any tenants-in-common are permitted up to an aggregate of 60%
interest as long as any new owner holding more than 33% satisfies certain credit
requirements. Certain additional transfers among the various tenants in common
are permitted provided certain provisions of the loan documents are satisfied.
In order to accommodate a sale of one of the buildings located at the Mortgaged
Property, the Borrower is entitled to elect to have the aggregate loan
bifurcated and proportionately allocated between the two portions of the
Mortgaged Property provided certain provisions of the loan documents are
satisfied.
West Point Village
The borrower is owned by certain tenants-in-common. Transfers of ownership
interests to new tenants-in-common are permitted provided certain provisions of
the loan documents are satisfied.
Xxxx Krossing Shopping Center
The borrower is owned by certain tenants-in-common. Transfers of ownership
interests to new tenants-in-common are permitted provided certain provisions of
the loan documents are satisfied.
Xxxxxx Xxxx Apartments
As long as certain affiliates of Borrower are publicly traded, shares in such
entities may be freely transferred.
Exception to paragraph (xxxvi)
Staten (Park Hill II)
There exists a subordinate lien on the related Mortgaged Property in the amount
of $7,430,264 held by HUD. HUD and the lender have entered into a subordination
and standstill agreement.
Staten (Park Hill I)
There exists a subordinate lien on the related Mortgaged Property in the amount
of $7,419,771 held by HUD. HUD and the lender have entered into a subordination
and standstill agreement.
Staten (St. George's)
There exists a subordinate lien on the related Mortgaged Property in the amount
of $4,999,684 held by HUD. HUD and the lender have entered into a subordination
and standstill agreement.
Exception to paragraph (xxxvii)
The Terraces Shopping Center
The borrower is owned by certain tenants-in-common. To date, the borrowers are
not single-purpose entities. However, all borrowers must transfer their
interests in the Mortgaged Property to a single-purpose entity under the terms
of the Mortgage Loan Documents on or prior to January 31, 2007.
Exception to paragraph (xxxviii)
Chesapeake Park Plaza
In connection with an approved sale of the related Mortgaged Property, a buyer
is permitted to incur subordinate secured debt secured by either the Mortgaged
Property or a pledge of the ownership interests of the buyer provided certain
conditions are met, including 75% LTV ratio, 1.25x DSCR, rating agency
confirmation, and execution of an acceptable intercreditor agreement.
Black Canyon & Red Mountain Office Buildings
In connection with an approved sale of the related Mortgaged Property, a buyer
is permitted to incur subordinate secured debt secured by either the Mortgaged
Property or a pledge of the ownership interests of the buyer provided certain
conditions are met, including 75% LTV ratio, 1.25x DSCR, rating agency
confirmation, and execution of an acceptable intercreditor agreement.
Exception to paragraph (xl)
Jupiter Park Apartments
The related Mortgaged Property is part of the same tax parcel as an adjacent
undeveloped parcel of land which was sold contemporaneously with the closing of
the loan, however, the related Borrower has covenanted to obtain separate tax
lots. Additionally, failure to pay any assessment that may become a lien on the
Mortgaged Property, including any assessment on the conveyed property, is an
event of default under the loan which would allow lender to draw on the letter
of credit provided by borrower in lieu of a tax escrow deposit.
Exception to paragraph (xliii)
Staten (St. George's)
There is a Kempster Litigation Reserve of $345,000 which is to be held pending
satisfactory resolution of one item of litigation.
Exception to paragraph (l)
Port St. Lucie Towncenter
The tenant estoppel from Staples noted that there were certain problems related
to the roof of the Mortgaged Property. Lender has required Borrower to post a
reserve related to the repair of such roof.
Exception to paragraph (li)
Holiday Inn South San Francisco
The building height limit is exceeded by 5 feet, however rebuilding to
nonconforming height is permitted if the total floor area does not exceed the
current floor area and the building permit is obtained within one year of the
loss; additionally, rebuilding to conforming height can be accomplished with no
reduction in the number of units in the Mortgaged Property.
Exception to paragraph (liv)
Chesapeake Park Plaza
Because the borrower is composed of tenants-in-common, the relative liability of
each TIC and its associated indemnitor is based upon such TIC/Indemnitor's
responsibility for the misapplication of funds, violation or fraud in question.
For any particular event, it is likely that certain TICs will be liable and
certain of the TICs will not be liable.
Black Canyon & Red Mountain Office Buildings
Because the borrower is composed of tenants-in-common, the relative liability of
each TIC and its associated indemnitor is based upon such TIC/Indemnitor's
responsibility for the misapplication of funds, violation or fraud in question.
For any particular event, it is likely that certain TICs will be liable and
certain of the TICs will not be liable.
Gallery at South Dekalb
The borrower's liability does not specifically cover "any willful act of
material waste", although the borrower is liable for removal of property or
willful misconduct.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES OF SELLER
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller or
any servicer acting on its behalf regarding the matters referred to, in each
case without having conducted any independent inquiry or due diligence with
respect to such matters and without any actual or implied obligation to make
such inquiry or perform such due diligence, other than making such inquiry or
performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either Seller or any servicer acting on its behalf.
__________________Seller hereby represents and warrants, subject to
the exceptions set forth in the Exception Report annexed to this Agreement as
Schedule V, with respect to the Mortgage Loans that as of the date hereinbelow
specified or, if no such date is specified, as of the date of this Agreement:
(i) Immediately prior to the sale, transfer and assignment to
Depositor, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to Seller), participation
or pledge, and Seller had good and marketable title to, and was the sole owner
of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act (any of the foregoing, including Seller, a
"Qualified Originator"); or
(B) if originated by a person which is not a Qualified Originator
(any such person, a "Non-Qualified Originator"), then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using
application forms and related credit documents approved
by the Qualified Originator;
2. the Qualified Originator approved each application and
related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such
commitment was issued until the Qualified Originator
agreed to fund such Mortgage Loan;
3. the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship
with the Qualified Originator; and
4. the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator,
and, pursuant to the Non-Qualified Originator's ongoing,
standing relationship with the Qualified Originator,
either:
(x) such closing documents reflect the Qualified
Originator as the original mortgagee, and such
Mortgage Loan was actually funded by the Qualified
Originator at the closing thereof;
(y) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(z) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(iii) Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to Depositor constitutes a legal,
valid and binding assignment of such Mortgage Loan;
(iv) Seller is transferring such Mortgage Loan free and clear of any
and all liens, pledges, charges or any other interests or security interests of
any nature encumbering such Mortgage Loan, except for interests in servicing
rights created or granted under the Pooling and Servicing Agreement,
subservicing agreements and/or servicing rights purchase agreements being
executed and delivered in connection herewith;
(v) To Seller's knowledge, based on the related borrower's
representations and covenants in the related mortgage loan documents and such
other due diligence as a reasonably prudent commercial mortgage lender would
deem appropriate, the borrower, lessee and/or operator was in possession of all
licenses, permits, and authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as of the origination
date and, to Seller's actual knowledge, such licenses, permits and
authorizations are still valid and in full force and effect;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no right of offset, rescission, abatement or diminution or
valid defense or counterclaim available to the related borrower with respect to
such Note, Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each related
Assignment of Leases creates a valid first priority collateral assignment of, or
a valid first priority lien or security interest in, certain rights under the
related lease or leases, subject only to a license granted to the related
borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease or leases, including the right to operate the related
leased property, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); no
person other than the related borrower owns any interest in any payments due
under such lease or leases that is superior to or of equal priority with the
lender's interest therein;
(viii) Each related assignment of Mortgage from Seller to the
Trustee and related assignment of the Assignment of Leases, if the Assignment of
Leases is a separate document from the Mortgage, is in recordable form (but for
the insertion of the name and address of the assignee and any related recording
information, which is not yet available to Seller), and such assignments and any
assignment of any other agreement executed by or for the benefit of the related
borrower, any guarantor or their successors or assigns in connection with such
Mortgage Loan from Seller to the Trustee constitutes the legal, valid and
binding assignment from Seller to the Trustee, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded in whole or in part and (B) each related
Mortgaged Property has not been released, in whole or in part, from the lien of
the related Mortgage in any manner which materially interferes with the security
intended to be provided by such Mortgage; and since August 28, 2005, no waiver,
consent, modification, assumption, alteration, satisfaction, cancellation,
subordination or rescission which changes the terms of, or the security for, the
Mortgage Loan in any material respect has occurred or been given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
except that, in the case of the CBA Mortgage Loans the related Mortgage
encumbering the related Mortgaged Property also secures one or more other
mortgage loans; and such Mortgaged Property is free and clear of any mechanics'
and materialmen's liens which are prior to or equal with the lien of the related
Mortgage, except those which are insured against by a lender's title insurance
policy (as described below). A UCC Financing Statement has been filed and/or
recorded (or sent for filing or recording) in all places necessary to perfect a
valid security interest in the personal property necessary to operate the
Mortgaged Property as currently operated; and such security interest is a first
priority security interest, subject to any prior purchase money security
interest in such personal property, any personal property leases applicable to
such personal property and any other security interest in such personal property
which do not, individually or in the aggregate, materially interfere with the
security intended to be provided for such Mortgage Loan. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid and enforceable lien on
the property described therein, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). In the case of any Mortgage Loan secured by a hotel, the related loan
documents contain such provisions as are necessary and UCC Financing Statements
have been filed as necessary, in each case, to perfect a valid first priority
security interest in the related operating revenues with respect to such
Mortgaged Property. Notwithstanding the foregoing, no representation is made as
to the perfection of any security interest in rent, operating revenues or other
personal property to the extent that possession or control of such items or
actions other than the filing of UCC Financing Statements are required in order
to effect such perfection;
(xi) Seller has not taken any action that would cause the
representations and warranties made by the related borrower in the related
Mortgage Loan Documents not to be true;
(xii) Seller has no knowledge that the material representations and
warranties made by the related borrower in the related Mortgage Loan Documents
are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee or leasehold interest of the related borrower in the principal amount of
such Mortgage Loan or allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related Mortgage) after all
advances of principal and is insured by an ALTA lender's title insurance policy
(except that if such policy is yet to be issued, such insurance may be evidenced
by a "marked up" pro forma policy or title commitment in either case marked as
binding and countersigned by the title company or its authorized agent, either
on its face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the named
mortgagee and its successors and assigns (as sole insured) as to such lien,
subject only to (A) the lien of current real property taxes, water charges,
sewer rents and assessments not yet delinquent or accruing interest or
penalties, (B) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or with the borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property, (C) the exceptions (general and specific) and exclusions set
forth in such policy, none of which, individually or in the aggregate,
materially interferes with the current general use of the Mortgaged Property or
materially interferes with the security intended to be provided by such Mortgage
or with the related borrower's ability to pay its obligations when they become
due or the value of the Mortgaged Property, (D) the rights of tenants, as
tenants only, under leases, including subleases, pertaining to the related
Mortgaged Property, (E) if the related Mortgage Loan is cross-collateralized
with any other Mortgage Loan, the lien of the mortgage instrument for that other
Mortgage Loan and (F) if the related Mortgaged Property is a unit in a
condominium, the related condominium declaration (items (A), (B), (C), (D), (E)
and (F) collectively, "Permitted Encumbrances"), and except that, in the case of
the CBA Mortgage Loans, the related Mortgage encumbering the related Mortgaged
Property also secures one or more other mortgage loans; and with respect to each
Mortgage Loan, such Permitted Encumbrances do not, individually or in the
aggregate, materially interfere with the security intended to be provided by the
related Mortgage, the current principal use of the related Mortgaged Property or
the current ability of the related Mortgaged Property to generate income
sufficient to service such Mortgage Loan; the premium for such policy was paid
in full; such policy (or if it is yet to be issued, the coverage to be afforded
thereby) is issued by a title insurance company licensed to issue policies in
the state in which the related Mortgaged Property is located (unless such state
is Iowa) and is assignable (with the related Mortgage Loan) to Depositor and the
Trustee without the consent of or any notification to the insurer, and is in
full force and effect upon the consummation of the transactions contemplated by
this Agreement; no claims have been made under such policy and Seller has not
undertaken any action or omitted to take any action, and has no knowledge of any
such act or omission, which would impair or diminish the coverage of such
policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted). If any of the inspection or
engineering reports referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true: (A) the repairs
and/or maintenance necessary to correct such condition have been completed in
all material respects; (B) an escrow of funds is required or a letter of credit
was obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (C) the
reasonable estimation at the time of origination of the Mortgage Loan of the
cost to complete the repairs and/or maintenance necessary to correct such
condition represented no more than the greater of (1) $50,000 and (2) 2% of the
value of the related Mortgaged Property as reflected in an appraisal conducted
in connection with the origination of the subject Mortgage Loan; as of the
closing date for each Mortgage Loan and, to Seller's knowledge, as of the date
hereof, there is no proceeding pending for the total or partial condemnation of
such Mortgaged Property that would have a material adverse effect on the use or
value of the Mortgaged Property;
(xvi) Seller has inspected or caused to be inspected each related
Mortgaged Property within the past twelve months, or the originator of the
Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the related
Anticipated Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to the lender or any other party;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and (i) the origination of each Mortgage Loan is in all respects legal,
proper and prudent in accordance with customary commercial mortgage lending
standards and (ii) the servicing and collection of each Mortgage Loan is in all
respects legal, proper and prudent in accordance with servicing standard and no
other person has been granted or conveyed the right to service the Mortgage
Loans or receive any consideration in connection therewith, except as provided
in the Pooling and Servicing Agreement or any permitted subservicing agreements
and/or servicing rights purchase agreements being executed and delivered in
connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required pursuant to each
Mortgage Loan are in the possession, or under the control, of Seller or its
agent and there are no deficiencies (subject to any applicable grace or cure
periods) in connection therewith, all such escrows and deposits are being
conveyed by Seller to Depositor and identified as such with appropriate detail,
and any and all requirements for the disbursement of any such escrows have been
complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Pooling and Servicing Agreement, in an amount not less than the lesser of
the principal amount of the related Mortgage Loan and the replacement cost (with
no deduction for physical depreciation) and not less than the amount necessary
to avoid the operation of any co-insurance provisions with respect to the
related Mortgaged Property; each related Mortgaged Property is also covered by
business interruption or rental loss insurance which covers a period of not less
than 12 months and comprehensive general liability insurance in amounts
generally required by prudent commercial mortgage lenders for similar
properties; all Mortgaged Properties in California or in a seismic zone 4 or 5
have had a seismic assessment done and earthquake insurance was obtained to the
extent any such Mortgaged Property has a probable maximum loss in the event of
an earthquake of greater than twenty percent (20%) of the replacement value of
the related improvements; if the Mortgaged Property for any Mortgage Loan is
located within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas, then, such
Mortgaged Property is insured by 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 insurable replacement cost of the improvements located on the
related Mortgaged Property; the Mortgaged Properties securing all of the
Mortgage Loans having a Cut-off Date Principal Balance in excess of $3,000,000
have, as of the date hereof, insurance policies in place with respect to acts of
terrorism or damage related thereto (excluding acts involving nuclear,
biological or chemical terrorism), except any such Mortgage Loans that are
listed on the applicable Exception Report. All premiums on such insurance
policies required to be paid as of the date hereof have been paid; such
insurance policies or the related insurance certificates require prior notice to
the insured of reduction in coverage, termination or cancellation, and no such
notice has been received by Seller; such insurance names the lender under the
Mortgage Loan and its successors and assigns as a named or additional insured;
each related Mortgage Loan obligates the related borrower to maintain all such
insurance and, at such borrower's failure to do so, authorizes the lender to
maintain such insurance at the borrower's cost and expense and to seek
reimbursement therefor from such borrower; (xxiv) There is no monetary default,
breach, violation or event of acceleration existing under the related Mortgage
Loan. To Seller's knowledge, there is no (A) non-monetary default, breach,
violation or event of acceleration existing under the related Mortgage Loan or
(B) event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration, which
default, breach, violation or event of acceleration, in the case of either (A)
or (B), would materially and adversely affect the use or value of the Mortgage
Loan or the related Mortgaged Property. Notwithstanding the foregoing, 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 or warranty made by Seller
elsewhere in this Exhibit A or the Exception Report;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the borrower which would
interfere with such right to foreclose, except, in the case of either (A) or
(B), as the enforcement of the Mortgage may be limited by bankruptcy,
insolvency, reorganization, moratorium, redemption or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law). No borrower is a debtor in a state or federal bankruptcy or insolvency
proceeding;
(xxvii) At origination, each borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; and the related borrower agreed to indemnify,
defend and hold the mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties, fines, expenses, and
claims of any kind whatsoever (including attorneys' fees and costs) paid,
incurred or suffered by, or asserted against, any such party resulting from a
breach of the foregoing representations, warranties or covenants given by the
borrower in connection with such Mortgage Loan. A Phase I environmental report
(or, with respect to residential cooperative loans with an original principal
balance of $350,000 or less, a transaction screen meeting ASTM standards) and,
with respect to certain Mortgage Loans, a Phase II environmental report was
conducted by a reputable independent environmental consulting firm in connection
with such Mortgage Loan, which report (or transaction screen) did not indicate
any material non-compliance with applicable environmental laws or material
existence of hazardous materials or, if any material non-compliance or material
existence of hazardous materials was indicated in any such report (or
transaction screen), then at least one of the following statements is true: (A)
funds reasonably estimated to be sufficient to cover the cost to cure any
material non-compliance with applicable environmental laws or material existence
of hazardous materials have been escrowed by the related borrower and held by
the related mortgagee; (B) if the environmental report recommended an operations
and maintenance plan, but not any material expenditure of funds, an operations
and maintenance plan has been required to be obtained by the related borrower;
(C) the environmental condition identified in the related environmental report
was remediated or abated in all material respects prior to the date hereof; (D)
a no further action or closure letter was obtained from the applicable
governmental regulatory authority (or the environmental issue affecting the
related Mortgaged Property was otherwise listed by such governmental authority
as "closed"); (E) such conditions or circumstances identified in the Phase I
environmental report were investigated further and based upon such additional
investigation, an environmental consultant recommended no further investigation
or remediation; (F) a party unrelated to the borrower with financial resources
reasonably estimated to be adequate to cure the condition or circumstance
provided a guaranty or indemnity to the related borrower to cover the costs of
any required investigation, testing, monitoring or remediation; (G) the
expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than two percent (2%) of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related Mortgage File. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impaired property environmental insurance
policy was obtained with respect to each such Mortgage Loan. Each of such
secured creditor impaired property environmental insurance policies is a part of
the related Mortgage File. Each of such environmental insurance policies is in
full force and effect, is in an amount not less than the 100% of the balance of
the related Mortgage Loan, and has a term extending not less than five years
after the maturity date of the related Mortgage Loan; the premiums for such
policies have been paid in full; the Trustee is named as an insured under each
of such policies; and Seller has delivered to the insurer all related
environmental reports in its possession. To Seller's knowledge, in reliance on
the environmental reports referred to in the second sentence of this paragraph
(xxvii) and except as set forth in such environmental reports, each Mortgaged
Property is in material compliance with all applicable federal, state and local
environmental laws, and to Seller's knowledge, no notice of violation of such
laws has been issued by any governmental agency or authority, except, in all
cases, as indicated in such environmental reports or other documents previously
provided to the Rating Agencies; and Seller has not taken any action which would
cause the Mortgaged Property to not be in compliance with all federal, state and
local environmental laws pertaining to environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related borrower to persons already holding interests in the
borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or any transfers in connection with the death or disability of
owners of the borrower or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related borrower,
each Mortgage Loan also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage (and the Mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent), a majority
interest in the related borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which Seller has obtained title insurance against losses
arising therefrom or that do not materially and adversely affect the use or
value of such Mortgaged Property. No improvements on adjoining parcels encroach
onto the related Mortgaged Property except for encroachments that do not
materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage, the current use of the Mortgaged Property, or
the related borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-off
Date);
(xxxi) With respect to any Mortgage Loan where all or any portion of
the estate of the related borrower therein is a leasehold estate under a ground
lease, and the related Mortgage does not also encumber the related lessor's fee
interest in such Mortgaged Property, based upon the terms of the ground lease
and any estoppel received from the ground lessor, Seller represents and warrants
that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns in a manner that would
adversely affect the security provided by the related
Mortgage. To Seller's knowledge, there has been no material
change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the
related mortgage file;
(B) The lessor under such ground lease has agreed in a writing
included in the related mortgage file that the ground lease
may not be amended, modified, canceled or terminated without
the prior written consent of the lender and that any such
action without such consent is not binding on the lender, its
successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and would be enforceable, by
the lender) that extends not less than 10 years beyond the
amortization term of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by Seller, the ground lease is not subject
to any liens or encumbrances superior to, or of equal priority
with, the Mortgage, subject to Permitted Encumbrances and
liens that encumber the ground lessor's fee interest;
(E) Under the terms of the ground lease, the ground lease is
assignable to the lender and its assigns without the consent
of the lessor thereunder;
(F) The ground lease is in full force and effect, Seller has no
actual knowledge that any default beyond applicable notice and
grace periods has occurred, and to Seller's knowledge, there
is no existing condition which, but for the passage of time or
giving of notice, would result in a default under the terms of
the ground lease;
(G) The ground lease or ancillary agreement, which is part of the
Mortgage File, between the lessor and the lessee requires the
lessor to give notice of any default by the lessee to the
lender;
(H) The lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground
lease which is curable after the receipt of notice of any
default before the lessor may terminate the ground lease. All
rights of the lender under the ground lease and the related
Mortgage (insofar as it relates to the ground lease) may be
exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by a prudent commercial mortgage lender. The lessor is not
permitted to disturb the possession, interest or quiet
enjoyment of any subtenant of the lessee in the relevant
portion of the Mortgaged Property subject to the ground lease
for any reason, or in any manner, which would adversely affect
the security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the lender
or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses
(except in such cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed
as commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the lender as a result of
any casualty or partial condemnation; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any
reason, including rejection of the ground lease in a
bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the lender would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related Mortgage File that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) Except in the case of the CBA Mortgage Loans with respect
to those Mortgage Loans that are cross-collateralized or cross-defaulted, all
other loans that are cross-collateralized or cross-defaulted with such Mortgage
Loans are being transferred to Depositor hereunder;
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (x) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (B) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
lender or any mezzanine debt related to such Mortgaged Property, except as set
forth in the Prospectus Supplement, in this Exhibit A or in the Exception
Report;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $5,000,000 require that the related borrower be a Single-Purpose
Entity (for this purpose, "Single-Purpose Entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan). To Seller's actual knowledge, each borrower
has fully complied with the requirements of the related Note and Mortgage and
borrower's organizational documents regarding Single-Purpose Entity status;
(xxxviii) Except in cases where the related Mortgaged Property is a
residential cooperative property, each Mortgage Loan prohibits the related
borrower from mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the borrower, without the prior written consent
of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified in the Note or Mortgage which would be acceptable to a
reasonably prudent commercial mortgage lender, and, except in connection with
trade debt and equipment financings in the ordinary course of borrower's
business, from carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or, with respect to
each Mortgage Loan having an original principal balance of less than $4,000,000,
any unsecured debt;
(xxxix) Each borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the borrower to maintain flood insurance,
or at such borrower's failure to do so, authorizes the lender to maintain such
insurance at the cost and expense of the borrower and such insurance is in full
force and effect in an amount not less than the lesser of (A) the replacement
cost of the material improvements on such Mortgaged Property, (B) the balance of
the Mortgage Loan and (C) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or has been substituted in accordance
with applicable law or may be substituted in accordance with applicable law by
the related mortgagee, and except in connection with a trustee's sale after a
default by the related borrower, no fees are payable to such trustee, and such
fees payable are payable by the borrower;
(xliii) Except as disclosed in the Exception Report to this
Agreement, to the knowledge of Seller as of the date hereof, there was no
pending action, suit or proceeding, arbitration or governmental investigation
against any borrower or Mortgaged Property, an adverse outcome of which would
materially and adversely affect such borrower's ability to perform under the
related Mortgage Loan;
(xliv) No advance of funds has been made by Seller to the related
borrower (other than mezzanine debt and the acquisition of preferred equity
interests by the preferred equity interest holder, as disclosed in the
Prospectus Supplement), and no funds have, to Seller's knowledge, been received
from any person other than, or on behalf of, the related borrower, for, or on
account of, payments due on the Mortgage Loan;
(xlv) To the extent required under applicable law, as of the Cut-off
Date or as of the date that such entity held the Note, each holder of the Note
was authorized to transact and do business in the jurisdiction in which each
related Mortgaged Property is located, or the failure to be so authorized did
not materially and adversely affect the enforceability of such Mortgage Loan;
(xlvi) All collateral for the Mortgage Loans is being transferred as
part of the Mortgage Loans;
(xlvii) Except as disclosed in the Exception Report or the
Prospectus Supplement with respect to the Crossed Mortgage Loans and Mortgage
Loans secured by multiple, non-contiguous real properties, no Mortgage Loan
requires the lender to release any portion of the Mortgaged Property from the
lien of the related Mortgage except upon (A) payment in full or defeasance of
the related Mortgage Loan, (B) the satisfaction of certain legal and
underwriting requirements that would be customary for prudent commercial
mortgage lenders, which in all events include payment of a release price at
least 125% of the appraised value of the property to be released or of the
allocated loan amount of such property, (C) releases of unimproved out-parcels
or (D) releases of other portions of the Mortgaged Property which will not have
a material adverse effect on the use or value of the collateral for the related
Mortgage Loan and which were given no value in the appraisal of the Mortgaged
Property or of that portion of the Mortgaged Property used to calculate the
loan-to-value ratio of the Mortgaged Property for underwriting purposes. No
release or partial release of any Mortgaged Property, or any portion thereof,
expressly permitted or required pursuant to the terms of any Mortgage Loan would
constitute a significant modification of the related Mortgage Loan under Treas.
Reg. Section 1.860G-2(b)(2);
(xlviii) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all casualty losses or
takings in excess of a specified amount or percentage of the related loan amount
that a prudent commercial lender would deem satisfactory and acceptable, the
lender (or a trustee appointed by it) having the right to hold and disburse such
proceeds as the repair or restoration progresses (except in any case where a
provision entitling another 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 such Mortgage Loan
together with any accrued interest thereon;
(xlix) Each UCC Financing Statement, if any, filed with respect to
personal property constituting a part of the related Mortgaged Property and each
assignment, if any, of such UCC Financing Statement to Seller was, and each
assignment, if any, of such UCC Financing Statement in blank which the Trustee
or its designee is authorized to complete (but for the insertion of the name of
the assignee and any related filing information which is not yet available to
Seller) is, in suitable form for filing in the filing office in which such UCC
Financing Statement was filed;
(l) To Seller's knowledge, (A) each commercial lease covering more
than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related borrower
that could give rise to the termination of such lease;
(li) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject 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. With respect to
Mortgage Loans with a Cut-off Date Principal Balance of over $10,000,000, if the
related Mortgaged Property does not so comply, to the extent Seller is aware of
such non-compliance, it has required the related borrower to obtain law and
ordinance insurance coverage in amounts customarily required by prudent
commercial mortgage lenders;
(lii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation (as defined herein) Section 1.860G-2(f)(2) that treats a
defective obligation as a qualified mortgage or any substantially similar
successor provision), the related Mortgaged Property, if acquired by a REMIC in
connection with the default or imminent default of such Mortgage Loan would
constitute "foreclosure property" within the meaning of Code Section 860G(a)(8)
and all Prepayment Premiums and Yield Maintenance Charges with respect to such
Mortgage Loan constitute "customary prepayment penalties" within the meaning of
Treasury Regulation Section 1.860G-1(b)(2);
(liii) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the borrower can pledge
only United States government securities in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the borrower is required to provide an opinion of counsel
that the trustee has a perfected security interest in such collateral prior to
any other claim or interest, (F) the borrower is required to pay all Rating
Agency fees associated with defeasance (if rating confirmation is a specific
condition precedent thereto) and all other reasonable expenses associated with
defeasance, including, but not limited to, accountant's fees and opinions of
counsel, (G) with respect to any Significant Loan (as defined in the Pooling and
Servicing Agreement), the borrower is required to provide an opinion of counsel
that such defeasance will not cause any REMIC created under the Pooling and
Servicing Agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any Significant Loan (as defined in
the Pooling and Servicing Agreement), the borrower must obtain confirmation from
each Rating Agency that the defeasance would not result in such Rating Agency's
withdrawal, downgrade or qualification of the then current rating of any class
of Certificates rated by such Rating Agency;
(liv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related borrower thereunder shall be liable to the lender for any
losses incurred by the lender due to (A) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that, if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the borrower;
(lv) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no less than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the applicable Master Servicer; and (D) any
cash flow from the related Mortgaged Property that is applied to amortize such
Mortgage Loan following its Anticipated Repayment Date shall, to the extent such
net cash flow is in excess of the Monthly Payment payable therefrom, be net of
budgeted and discretionary (servicer approved) capital expenditures;
(lvi) Except as disclosed in the Prospectus Supplement, no Mortgage
Loan, and no group of Mortgage Loans made to the same borrower and to borrowers
that are Affiliates, accounted for more than 5.0% of the aggregate of the
Cut-off Date Principal Balances of all of the mortgage loans (including the
Mortgage Loans) sold to Depositor by Column Financial, Inc., GMAC Commercial
Mortgage Corporation and General Electric Capital Corporation pursuant to those
certain Mortgage Loan Purchase Agreements, each dated as of November 1, 2005,
between Depositor and Column Financial, Inc., GMAC Commercial Mortgage
Corporation and General Electric Capital Corporation, respectively, as of the
Cut-off Date;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or acquisition
of each Mortgage Loan, Seller obtained an appraisal of the related Mortgaged
Property, which appraisal is signed by an appraiser, who, to Seller's actual
knowledge, had no interest, direct or indirect, in the borrower, the Mortgaged
Property or in any loan made on the security of the Mortgaged Property, and
whose compensation was not affected by the approval or disapproval of the
Mortgage Loan; and
(lviii) Each Mortgage Loan bears interest at a rate that remains
fixed throughout the remaining term of such Mortgage Loan, except in the case of
an ARD Loan after its Anticipated Repayment Date and except for the imposition
of a default rate.
EXHIBIT B
NCB, FSB MORTGAGE LOAN PURCHASE AGREEMENT
See Attached
EXECUTED COPY
--------------------------------------------------------------------------------
COLUMN FINANCIAL, INC.
(Purchaser)
and
NCB, FSB
(Seller)
------------------------------------------------------------
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 30, 2005
------------------------------------------------------------
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Purchaser's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Cooperation in Disposition Transactions.........................
Section 9. Servicing; Retained Interest....................................
Section 10. Representations and Warranties of Purchaser.....................
Section 11. Survival of Certain Representations, Warranties and Covenants...
Section 12. Transaction Expenses............................................
Section 13. Recording Costs and Expenses....................................
Section 14. Notices.........................................................
Section 15. Examination of Mortgage Files...................................
Section 16. Successors......................................................
Section 17. Governing Law...................................................
Section 18. Severability....................................................
Section 19. Further Assurances..............................................
Section 20. Counterparts....................................................
Section 21. Treatment as Security Agreement.................................
Section 22. Recordation of Agreement........................................
Section 23. Servicing of the Mortgage Loans.................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III [Reserved]
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 30, 2005, is made by and between NCB, FSB, a federal savings bank
chartered by the Office of Thrift Supervision of the U.S. Department of Treasury
("Seller"), and COLUMN FINANCIAL, INC., a Delaware corporation ("Purchaser").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference.
II. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Purchaser intends to securitize, sell or
otherwise dispose of such Mortgage Loans in a subsequent transaction (any such
transaction, a "Disposition Transaction").
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Purchaser and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or prior
to the Closing Date, Seller shall have delivered the Mortgage Files with respect
to each of the Mortgage Loans listed in the Mortgage Loan Schedule to Purchaser
or its designee, against receipt by Seller of a written receipt, pursuant to an
arrangement between Seller and the Purchaser; provided, however, that item (xvi)
in the definition of Mortgage File (below) shall be retained by the Seller as
the Servicer for inclusion in the Servicer File (defined below) with a copy
delivered to the Purchaser for inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date. The closing (the "Closing") shall take
place at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as agreed upon between
the parties hereto. On the Closing Date, Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, on a servicing retained basis, the
Mortgage Loans pursuant to this Agreement for the Mortgage Loan Purchase Price
payable in accordance with instructions previously provided to Purchaser by
Seller; provided, however, that Seller expressly hereby retains and does not
transfer to Purchaser the Retained Interest. The Mortgage Loan Purchase Price
shall be paid by Purchaser to Seller or at its direction by wire transfer in
immediately available funds to an account designated by Seller on or prior to
the Closing Date. The "Mortgage Loan Purchase Price" paid by Purchaser shall be
equal to the amount that the Purchaser and the Seller have mutually agreed upon
as set forth in the Closing Statement (which amount includes, without
limitation, accrued interest).
Section 3. Conveyance of Mortgage Loans. On the Closing Date, Seller
shall sell, convey, assign and transfer on a servicing retained basis (as
provided in Section 23 below), without recourse except as provided herein, to
Purchaser, free and clear of any liens, claims or other encumbrances, all of
Seller's right, title and interest in, to and under: (i) each of the Mortgage
Loans identified on the Mortgage Loan Schedule and (ii) all property of Seller
described in Section 21(b) of this Agreement, including, without limitation, (A)
all scheduled payments of interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date and (B) all other payments of interest,
principal or prepayment premiums received on or with respect to the Mortgage
Loans after the Cut-off Date, other than any such payments of interest or
principal or prepayment premiums that were due on or prior to the Cut-off Date
and excluding the Retained Interest which is not being transferred herein. Each
Mortgage File shall contain the following documents:
(i) the original Note (or with respect to those Mortgage Loans
listed in Schedule IV hereto, a "lost note affidavit" substantially
in the form of Exhibit B hereto and a true and complete copy of the
Note), bearing, or accompanied by, all prior and intervening
endorsements or assignments showing a complete chain of endorsement
or assignment from the Mortgage Loan Originator either in blank or
to Seller, and further endorsed (at the direction of Purchaser given
pursuant to this Agreement) by Seller, on its face or by allonge
attached thereto, without recourse, either in blank or to the order
of the Purchaser in the following form: "Pay to the order of Column
Financial, Inc., without recourse, representation or warranty,
express or implied";
(ii) a duplicate original Mortgage or a counterpart thereof
or, if such Mortgage has been returned by the related recording
office, (A) an original, (B) a certified copy or (C) a copy thereof
from the applicable recording office, and originals or counterparts
(or originals, certified copies or copies from the applicable
recording office) of any intervening assignments thereof from the
Mortgage Loan Originator to Seller, in each case in the form
submitted for recording or, if recorded, with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form (except for any missing recording information and, if
applicable, completion of the name of the assignee), from Seller (or
the Mortgage Loan Originator) either in blank or to "Column
Financial, Inc.";
(iv) an original, counterpart or copy of any related
Assignment of Leases (if such item is a document separate from the
Mortgage), and the originals, counterparts or copies of any
intervening assignments thereof from the Mortgage Loan Originator of
the Loan to Seller, in each case in the form submitted for recording
or, if recorded, with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in
recordable form (except for any missing recording information and,
if applicable, completion of the name of the assignee), from Seller
(or the Mortgage Loan Originator), either in blank or to "Column
Financial, Inc.";
(vi) an original or true and complete copy of any related
security agreement (if such item is a document separate from the
Mortgage), and the originals or copies of any intervening
assignments thereof from the Mortgage Loan Originator to Seller;
(vii) an original assignment of any related security agreement
(if such item is a document separate from the Mortgage), from Seller
(or the Mortgage Loan Originator) either in blank or to "Column
Financial, Inc.," which assignment may be included as part of an
omnibus assignment covering other documents relating to the Mortgage
Loan (provided that such omnibus assignment is effective under
applicable law);
(viii) originals or copies of all (A) assumption agreements,
(B) modifications, (C) written assurance agreements and (D)
substitution agreements, together with any evidence, when
appropriate, of recording thereon or in the form submitted for
recording, in those instances where the terms or provisions of the
Mortgage, Note or any related security document have been modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof (together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy), or if the policy
has not yet been issued, the original or a copy of a binding written
commitment (which may be a pro forma or specimen title insurance
policy which has been accepted or approved in writing by the related
title insurance company) or interim binder that is marked as binding
and countersigned by the title company, insuring the priority of the
Mortgage as a first lien on the related Mortgaged Property, relating
to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all UCC
financing statements and continuation statements which show the
filing or recording thereof (including the filing number or other
similar filing information) or copies thereof in the form submitted
for filing or recording sufficient to perfect (and maintain the
perfection of) the security interest held by the Mortgage Loan
Originator (and each assignee prior to the Purchaser) in and to the
personalty of the Borrower at the Mortgaged Property, and original
UCC assignments in a form suitable for filing or recording,
sufficient to transfer such security interest to the Purchaser;
(xii) the original or copy of any power of attorney (with
evidence of recording thereon) granted by the Borrower if the
Mortgage, Note or other document or instrument referred to above was
not signed by the Borrower;
(xiii) an original or copy of any subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to subordinate indebtedness, including any
mezzanine loan documents or preferred equity documents;
(xiv) with respect to any cash collateral accounts and
lock-box accounts, an original or copy of any related account
control agreement and a copy of the UCC financing statements, if
any, submitted for filing with respect to Seller's security interest
in the cash collateral accounts and lock-box accounts and all funds
contained therein (together with UCC financing statement assignments
assigning such security interest to the Purchaser);
(xv) an original or copy of any related Loan Agreement (if
separate from the related Mortgage);
(xvi) the originals of letters of credit, if any, relating to
the Mortgage Loans and amendments thereto which entitles the
Purchaser or its designee to draw thereon; subject, however, to the
proviso set forth in Section 1;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement;
(xviii) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel
or a certified copy thereof; and
(xix) any additional documents required to be added to the
Mortgage File pursuant to the Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC financing statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC financing statements to be filed in accordance
with the transfer contemplated by this Agreement) above, with evidence of
recording or filing thereon on the Closing Date solely because of a delay caused
by the public recording or filing office where such document or instrument has
been delivered for recordation or filing, Seller: (i) shall deliver, or cause to
be delivered, to the Purchaser or its designee a duplicate original or true copy
of such document or instrument certified by the applicable public recording or
filing office, the applicable title insurance company or Seller to be a true and
complete duplicate original or copy of the original thereof submitted for
recording or filing; and (ii) shall deliver, or cause to be delivered, either
the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate public recording or filing office to be a
true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, within 365 days after the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 90 days (provided that Seller, as certified in writing to
Purchaser prior to each such 90-day extension, is in good faith attempting to
obtain from the appropriate recording or filing office such original or
photocopy). Compliance with this paragraph will satisfy Seller's delivery
requirements under this Section 3 with respect to the subject document(s) and
instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC financing statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC financing statements to be filed in accordance
with the transfer contemplated by this Agreement) above with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Purchaser or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver to the Purchaser or its designee any UCC-2 or UCC-3 assignment with the
filing information of the UCC-1 financing statement with respect to any Mortgage
Loan, solely because such UCC-1 financing statement has not been returned by the
public filing office where such UCC-1 financing statement has been delivered for
filing, Seller shall deliver or cause to be delivered to the Purchaser or its
designee a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. The Seller, promptly upon receipt of the applicable
filing information of the UCC-1 financing statement being so assigned, shall
deliver or cause to be delivered to the Purchaser or its designee the original
UCC-2 or UCC-3 assignment with all appropriate filing information set forth
thereon.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC financing
statements to the Purchaser to be delivered pursuant to clauses (iii), (v) and
(xi) above (collectively, the "Assignments"), to submit those Assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver those Assignments to the Purchaser or its
designee as those Assignments (or certified copies thereof) are received from
the applicable filing and recording offices with evidence of such filing or
recording indicated thereon. However, in the event Seller engages a third-party
contractor as contemplated in the immediately preceding sentence, the rights,
duties and obligations of Seller pursuant to this Agreement remain binding on
the Seller; and, if Seller does not engage a third party as contemplated by the
immediately preceding sentence, then Seller will still be liable for recording
and filing fees and expenses of the Assignments as and to the extent
contemplated by Section 13 hereof.
On and after the Closing Date, Seller shall retain the Servicer
Files with respect to each of the Mortgage Loans in its capacity as Servicer for
the benefit of the Purchaser. Each such Servicer File shall contain all
documents and records in the Seller's possession relating to such applicable
Mortgage Loans (including reserve and escrow agreements, rent rolls, leases,
environmental and engineering reports, third-party underwriting reports,
appraisals, surveys, legal opinions, estoppels, cash management agreements,
lockbox agreements, financial statements, operating statements and any other
information provided by the respective Borrower from time to time, but excluding
any draft documents, attorney/client communications, which are privileged or
constitute legal or other due diligence analyses and documents prepared by the
Seller or any of its Affiliates solely for internal communication, credit
underwriting or due diligence analyses) that are not required to be a part of a
Mortgage File in accordance with the definition thereof, together with copies of
all instruments and documents which are required to be a part of the related
Mortgage File in accordance with the definition thereof.
The Purchaser shall be entitled to all scheduled principal payments
due after the Cut-off Date, all other payments of principal due and collected
after the Cut-off Date, and all payments of interest on the Mortgage Loans due
after the Cut-off Date, minus that portion of any such payment which is
allocable to either (i) the Retained Interest or (ii) the period on or prior to
the Cut-off Date. All scheduled payments of principal due on or before the
Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Purchaser
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Purchaser, subject to
the Retained Interest, and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of Seller as seller of the Mortgage Loans hereunder, exclusive in
each case of documents prepared by Seller or any of its Affiliates solely for
internal credit analysis or other internal uses or any attorney client
privileged communication, shall immediately vest in Purchaser, subject to the
Retained Interest. All monthly payments, principal prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the Servicer on behalf of the Purchaser.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Purchaser, as provided
herein, as a sale of the Mortgage Loans to Purchaser in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Purchaser
and with the exception of the Retained Interest which has been retained by
Seller are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Purchaser, as
provided herein, Seller shall not take any action inconsistent with Purchaser's
ownership (or the ownership by any of Purchaser's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Servicing Agreement, and further except for actions that
Seller is expressly permitted to complete subsequent to the Closing Date, Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by Seller to Purchaser.
Section 4. Purchaser's Conditions to Closing. The obligations of
Purchaser to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by it
on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Purchaser shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Purchaser, or if directed by Purchaser, the Purchaser's
attorneys or other designee, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
Purchaser and Seller, duly executed by all signatories other than Purchaser, as
required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of Section 1
of this Agreement, which shall have been delivered to and held by
the Purchaser or its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) [Reserved]
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, in form acceptable to the Purchaser as to various
corporate matters and such other matters as shall be reasonably
required by the Purchaser;
(v) a schedule of the balances of the escrow accounts and the
reserve accounts pertaining to the Mortgage Loans; and
(vi) all other information, documents, certificates, or
letters with respect to the Mortgage Loans or Seller and its
Affiliates as are reasonably requested by Purchaser in order for
Purchaser to perform any of it obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to any
sale of Mortgage Loans by Purchaser as contemplated herein.
(c) Seller shall have performed or complied with all other terms and
conditions of this Agreement which it is required to perform or comply with at
or before the Closing and shall have the ability to perform or comply with all
duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
Section 5. Seller's Conditions to Closing. The obligations of Seller
under this Agreement shall be subject to the satisfaction, on the Closing Date,
of the following conditions:
(a) Each of the obligations of Purchaser required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; and all of
the representations and warranties of Purchaser under this Agreement shall be
true and correct in all material respects as of the Closing Date; and no event
shall have occurred with respect to Purchaser which, with notice or the passage
of time, would constitute a material default under this Agreement, and Seller
shall have received certificates to that effect signed by authorized officers of
Purchaser.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Purchaser, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) the Servicing Agreement;
(ii) an officer's certificate of Purchaser, dated as of the
Closing Date, with the resolutions of Purchaser authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Purchaser; and
(iii) such other certificates of its officers or others, such
opinions of Purchaser's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) Purchaser shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Purchaser as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
federal savings bank in good standing under the laws of the United
States of America. Seller has conducted and is conducting its
business so as to comply in all material respects with all
applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply
would not have a materially adverse effect on the performance by
Seller of this Agreement, and there is no charge, action,
investigation, suit or proceeding before or by any court, regulatory
authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to
materially and adversely affect the performance by Seller of this
Agreement or the consummation of transactions contemplated by this
Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans and to execute and
deliver this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all
agreements and documents executed and delivered by Seller in
connection herewith). Seller has duly authorized the execution,
delivery and performance of this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith),
and has duly executed and delivered this Agreement (and all
agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, fraudulent
transfer, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law)
and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or
result in a breach of any of the terms, conditions or provisions of
Seller's articles or certificate of incorporation and bylaws or
similar type organizational documents, as applicable; (B) conflict
with, result in a breach of, or constitute a default or result in an
acceleration under, any agreement or instrument to which Seller is
now a party or by which it (or any of its properties) is bound if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (D) result
in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations
under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); or (E) result in the
creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its
duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith),
or materially impair the ability of Purchaser to realize on the
Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans (1)
will not cause Seller to become insolvent and (2) is not intended by
Seller to hinder, delay or defraud any of its present or future
creditors. After giving effect to its transfer of the Mortgage
Loans, as provided herein, the value of Seller's assets, either
taken at their present fair saleable value or at fair valuation,
will exceed the amount of Seller's debts and obligations, including
contingent and unliquidated debts and obligations of Seller, and
Seller will not be left with unreasonably small assets or capital
with which to engage in and conduct its business. 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. No proceedings looking toward liquidation, dissolution
or bankruptcy of Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over
Seller is required for (A) Seller's execution, delivery and
performance of this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith), (B) Seller's
transfer and assignment of the Mortgage Loans, or (C) the
consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or, to the extent so required, such
consent, approval, authorization, order, registration, filing or
notice has been obtained, made or given (as applicable), except for
the filing or recording of assignments and other Mortgage Loan
Documents contemplated by the terms of this Agreement and except
that Seller may not be duly qualified to transact business as a
foreign corporation or licensed in one or more states if such
qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans, Seller
is receiving new value. The consideration received by Seller upon
the sale of the Mortgage Loans constitutes at least fair
consideration and reasonably equivalent value for the Mortgage
Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which
are reasonably likely to draw into question the validity of this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or which, either in any one instance
or in the aggregate, are reasonably likely to materially impair the
ability of Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(ix) Seller's performance of its duties and obligations under
this Agreement (and each agreement or document executed and
delivered by Seller in connection herewith) is in the ordinary
course of business of Seller and Seller's transfer, assignment and
conveyance of the Mortgage Loans pursuant to this Agreement are not
subject to the bulk transfer or similar statutory provisions in
effect in any applicable jurisdiction. The Mortgage Loans do not
constitute all or substantially all of Seller's assets.
(x) Seller has not dealt with any Person that may be entitled,
by reason of any act or omission of Seller, to any commission or
compensation in connection with the sale of the Mortgage Loans to
Purchaser hereunder except for the reimbursement of expenses as
described herein.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of
its properties) is bound which breach or default would materially
and adversely affect the ability of Seller to perform its
obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit
A hereto, subject to the exceptions to such representations and
warranties set forth on Schedule V hereto, are true and correct in
all material respects as of the date hereof with respect to the
Mortgage Loans identified on Schedule II.
(xiii) The originals or copies of the Mortgage Loan Documents
required hereunder to be delivered to Purchaser as a part of the
Mortgage Files (including, without limitation, all letters of credit
and amendments thereto relating to the Mortgage Loans) on or before
the Closing Date and all statements, reports or other documents
prepared by unaffiliated third parties (e.g., environmental reports,
structural reports, appraisals, surveys and audited financial
statements) furnished by Seller to Purchaser with respect to the
Mortgage Loans prior to the Closing (each, a "Third Party Report")
are accurate and complete originals or copies thereof. To Seller's
best knowledge, no statement, report or other document (which is not
a Mortgage Loan Document or a Third Party Report) furnished to
Purchaser in writing on or before the Closing Date by or on behalf
of the Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements contained therein (in light of the circumstances
under which such statements were made) not misleading. Seller has
delivered to Purchaser all material information in its possession
with respect to the Mortgage Loans and the Mortgaged Properties.
(b) Seller hereby agrees that it shall be deemed to make, as of the
date of substitution, to and for the benefit of the Purchaser or any transferee
to be replaced, with respect to any replacement mortgage loan (a "Replacement
Mortgage Loan") that is substituted for a Mortgage Loan affected by a Material
Defect or a Material Breach, pursuant to Section 7 of this Agreement, each of
the representations and warranties set forth in Exhibit A hereto (references
therein to "Closing Date" being deemed to be references to the "date of
substitution" and references therein to "Cut-off Date" being deemed to be
references to the "due date for the subject Replacement Mortgage Loan during the
month of substitution"). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
If the Purchaser sells any of the Mortgage Loans in a Disposition
Transaction, the Seller further agrees to make on the Disposition Date (i) each
of the representations and warranties set forth in Exhibit A as of the date
specified in such representation and warranty or, if no such date is specified,
as of the Disposition Date (except that certain of such representations and
warranties, such as those relating to the Seller's ownership or transfer of the
Mortgage Loans on the Closing Date and the like, shall be made or confirmed to
be true as of the Closing Date), subject to the exceptions to such
representations and warranties set forth on Schedule V hereto and such
additional exceptions as may be appropriate based upon changes in factual
circumstances related to such Mortgage Loans between the date hereof and the
Disposition Date and (ii) representations and warranties pertaining to its
status as a federally chartered corporation, due authorization to make
representations and warranties and similar matters reasonably related to its
making of the representations and warranties described in clause (i) of this
Section 6(b).
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement. The representations and warranties contained in or required to be
made by Seller pursuant to Section 6 of this Agreement shall not be impaired by
any review or examination of the Mortgage Files or other documents evidencing or
relating to the Mortgage Loans or any failure on the part of Purchaser to review
or examine such documents, and such representations and warranties shall inure
to the benefit of any transferee or transferees of the Mortgage Loans from
Purchaser in connection with any Disposition Transaction, including, without
limitation, the depositor or trustee of Mortgage Loans being securitized in such
a Disposition Transaction, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases.
If the Purchaser or the Servicer discovers or receives notice of a
breach of any of the representations or warranties made by the Seller with
respect to the Mortgage Loans (subject to the exceptions to such representations
and warranties set forth in the Exception Report) as set forth in Exhibit A
hereto, as of the date hereof in Section 6(a)(xii) (subject to the exceptions to
such representations and warranties set forth in the Exception Report), or in
the case of any Replacement Mortgage Loan, as of the date of substitution
pursuant to Section 6(b) (in any such case, a "Breach"), or receives notice that
(a) any document required to be included in the Mortgage File related to any
Mortgage Loan is not in the Purchaser's possession within the time period
required herein or (b) such document has not been properly executed or is
otherwise defective on its face (subsection (a) and (b) each, a "Defect"
(including the "Defects" detailed in the immediately following paragraph) in the
related Mortgage File), such party shall give notice to the other party and the
Seller. If the Purchaser determines that such Breach or Defect, as the case may
be, materially and adversely affects, or is deemed hereby to materially and
adversely affect, the value of any Mortgage Loan or the interests of the
Purchaser therein (in either case, a "Material Breach" or "Material Defect"), it
shall give prompt written notice of such Breach or Defect to the Seller and
shall request that the Seller not later than the earlier of 90 days from the
receipt by the Seller of such notice (subject to the second succeeding
paragraph, the "Initial Resolution Period"): (i) cure such Breach or Defect in
all material respects; (ii) repurchase the affected Mortgage Loan at the
applicable Repurchase Price or (iii) substitute one or more Qualified Substitute
Mortgage Loans for such affected Mortgage Loan (provided that in no event shall
any substitution occur later than the second anniversary of the later of the
Closing Date or, if applicable, the Disposition Date) and pay the Purchaser any
Substitution Shortfall Amount in connection therewith; provided, however, that
if (i) such Material Breach or Material Defect is capable of being cured but not
within the Initial Resolution Period, (ii) such Material Breach or Material
Defect does not cause the related Mortgage Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code), (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Defect within the Initial Resolution Period and (iv) the Seller has
delivered to the Purchaser an officer's certificate that describes the reasons
that the cure was not effected within the Initial Resolution Period and the
actions that it proposes to take to effect the cure and that states that it
anticipates the cure will be effected within the additional 90-day period, then
the Seller shall have an additional 90 days to cure such Material Defect or
Material Breach. With respect to any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the determination date
(under the applicable servicing agreement, if any) for such month; (B) scheduled
payments of principal and interest due with respect to the Qualified Substitute
Mortgage Loan(s) after the related date of substitution shall belong to the
Purchaser; and (C) scheduled payments of principal and interest due with respect
to such Qualified Substitute Mortgage Loan(s) on or prior to the related date of
substitution shall belong to the Seller, and the Seller shall be entitled to
receive such payments promptly following receipt by the Purchaser. If any Breach
pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Purchaser (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by any Servicer on the Purchaser's behalf that are the basis
of such Breach and have not been reimbursed by the related Borrower; provided,
however, that in the event any such costs and expenses exceed $10,000, Seller
shall have the option to either repurchase the related Mortgage Loan at the
applicable Repurchase Price or pay such costs and expenses. Except as provided
in the proviso to the immediately preceding sentence, Seller shall remit the
amount of such costs and expenses and upon its making such remittance, Seller
shall be deemed to have cured such Breach in all respects.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) of the last
sentence of the first paragraph of Section 3 hereof; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Purchaser, unless there is included in the Mortgage File a
certified copy of the intervening assignment as recorded or as sent for
recordation, together with a certificate stating that the original intervening
assignment was sent for recordation, or a copy of the intervening assignment and
the related recording information; or (e) the absence from the Servicer File of
any required original letter of credit, provided that such Defect may be cured
by any substitute letter of credit or cash reserve on behalf of the related
Borrower; or (f) the absence from the Mortgage File of the original or a copy of
any required ground lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7.
The Repurchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Purchaser by wire
transfer of immediately available funds to the account designated by Purchaser
and Purchaser, upon receipt of such funds (and, in the case of a substitution,
receipt of the Mortgage File(s) for the related Qualified Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and Servicer File or
cause them to be released, to Seller and shall execute and deliver such
instruments of transfer or assignment as shall be necessary to vest in 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) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Purchaser and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Cooperation in Disposition Transactions. Barring the
occurrence of the following events, the Purchaser intends to securitize the
Mortgage Loans in the Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2005-C5: (x) market
disruption, (y) the removal of a Mortgage Loan from the securitization pool by a
Rating Agency or (z) the removal of a Mortgage Loan from the securitization pool
by Cadim TACH, Inc., or its affiliates. As necessary in connection with the
closing of the Disposition Transaction, the Seller, acting in its capacity as
the Servicer, will (a) supply such information, opinions of counsel, letters
from law and/or accounting firms and other documentation, acknowledgements,
confirmations, powers of attorney and certificates as Purchaser, or its
affiliates, shall reasonably request to effect the Disposition Transaction
(including any such requests that arise from requirements imposed by any Rating
Agency or by Cadim TACH, Inc., or its affiliates), and enter into such
indemnification agreements relating to or in connection with the Disposition
Transaction as Purchaser, or its affiliates, may reasonably require and (b) make
itself available for and engage in good faith consultation with the participants
concerning information to be contained in any document, agreement, prospectus
supplement, offering circular, private placement memorandum or filing with the
Securities and Exchange Commission in connection with the Disposition
Transaction, in each case relating to the Seller or such Mortgage Loans, and
will use reasonable efforts to compile any information and prepare any reports
and certificates, into a form, whether written or electronic, suitable for
inclusion in such documentation.
Section 9. Servicing; Retained Interest.
(a) Servicing. The Mortgage Loans are being sold to Purchaser on a
servicing retained basis and shall be serviced by Servicer pursuant to the
Servicing Agreement.
(b) Retained Interest. (i) The sale of the Mortgage Loans to
Purchaser expressly excludes the Retained Interest with respect to each Mortgage
Loan, which, subject to the right of Seller to assign the same, is and shall
remain the property of Seller. The Retained Interest shall be 10 basis points of
each Mortgage Loan and the Retained Interest with respect to each Mortgage Loan
shall be payable monthly, on or prior to the 15th day of each month, in an
amount equal to one-twelfth of the product obtained by multiplying the
outstanding principal balance of the Mortgage Loan (determined as of the last
day of the month preceding the month in which such Retained Interest is payable)
by the Retained Rate. The Retained Interest shall be payable out of the interest
portion (including recoveries with respect to interest from liquidation
proceeds, insurance proceeds, condemnation proceeds or REO proceeds) of the
related monthly payment paid by the Borrower. If, in any month, a Borrower shall
make a payment in an amount less than the full amount of the monthly payment due
in such month, then Seller shall be entitled to receive a pro rata portion of
the Retained Interest attributable to such month based upon the portion of the
interest payment actually paid by the Borrower with respect to such calendar
month, subject to Seller's right to receive any shortfall out of any future
payments made on such Mortgage Loan. For purposes of making any determination
pursuant to the preceding sentence, amounts paid by a Borrower shall be deemed
to be applied first in payment of the interest portion of any monthly payment
prior to being applied against the principal portion of such monthly payment;
provided, however, that all liquidation proceeds shall be deemed to be applied
first in payment of the outstanding principal balance of the Mortgage Loan prior
to being applied to accrued and unpaid interest on the Mortgage Loan. The method
of payment of the Retained Interest is more particularly described in the
Servicing Agreement.
(ii) The Purchaser hereby acknowledges that any termination of
Seller as Servicer under the Servicing Agreement shall not affect
the right of Seller to continue to receive the Retained Interest. In
the event of any such termination, the Retained Interest shall
continue to be paid to Seller, on a monthly basis, out of the
Monthly Payments paid by each Borrower with respect to its
respective Mortgage Loan. In the event that Seller is no longer
acting as Servicer of the Mortgage Loans, Purchaser shall promptly
enter into one or more new servicing agreement(s) with respect to
the Mortgage Loans which agreement(s) shall obligate such servicer
to remit the Retained Interest to Seller in accordance with the
terms of this Agreement pursuant to provisions which are
substantively equivalent to those contained within the Servicing
Agreement relative to the Retained Interest and otherwise in form
and substance reasonably satisfactory to Seller.
Any transfer of any Mortgage Loan, whether immediate or
remote, including, without limitation, any transfer in connection
with a Securitization of the Mortgage Loans, shall be made expressly
subject to Seller's right to continue to receive the Retained
Interest and Purchaser shall cause any instrument or agreement of
transfer to expressly provide that the transfer of the Mortgage
Loans and any subsequent transfer of the Mortgage Loans is subject
in all respect to Seller's and any successor to Seller's right to
receive the Retained Interest. Upon securitization, Purchaser shall
cause the delivery of the Class A-Y Certificate to Seller. The Class
A-Y Certificate shall have the same payments, priorities, and
allocations as was previously given to such class in the pooling and
servicing agreement related to Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates,
Series 2005-C3, including but not limited to a strip rate of 0.10%
plus the portion of the yield maintenance charge allocated to the
Class A-Y Certificates and 50% of all prepayment premiums with
respect to the Mortgage Loans. Seller's rights to receive Retained
Interest terminates upon receipt of the Class A-Y Certificates.
Section 10. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Purchaser is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Purchaser of this Agreement and
the performance of Purchaser's obligations hereunder are within the corporate
power of Purchaser and have been duly authorized by Purchaser and neither the
execution and delivery by Purchaser of this Agreement nor the compliance by
Purchaser with the provisions hereof, nor the consummation by Purchaser of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Purchaser or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Purchaser or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Purchaser is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Purchaser,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by Purchaser
and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Purchaser in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Purchaser, threatened against Purchaser
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein or termination of this Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel and Purchaser shall be responsible for the fees and
expenses of its own counsel and all other transaction expenses shall be paid by
the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to reimburse
the Purchaser or its designee for all recording and filing fees and expenses
incurred by the Purchaser or its designee in connection with the recording or
filing of the Mortgage Loan Documents listed in Section 3 of this Agreement,
including Assignments. In the event Seller elects to engage a third-party
contractor to prepare, complete, file and record Assignments with respect to
Mortgage Loans as provided in Section 3 of this Agreement, Seller shall contract
directly with such contractor and shall be responsible for such contractor's
compensation and reimbursement of recording and filing fees and other
reimbursable expenses pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Purchaser, will be mailed, delivered or telecopied and confirmed to it at
Column Financial, Inc., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, Telecopy No.: (000) 000-0000 (with a copy to Xxxxx
XxXxxxxxxx, Esq., Legal & Compliance Department, Telecopy No.: (000) 000-0000),
or such other address or telecopy number as may be designated by Purchaser to
Seller in writing, or (b) if sent to Seller, will be mailed, delivered or
telecopied and confirmed to it at 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxxxx Xxxxx, Telecopy No.: (000) 000-0000, or such other address
or telecopy number as may be designated by Seller to Purchaser in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Purchaser or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Purchaser
and Seller. The fact that Purchaser or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Purchaser to demand cure, repurchase, or other relief as
provided herein.
Section 16. Successors. This Agreement shall inure to the benefit of
and shall be binding upon Seller and Purchaser and their respective successors
and permitted assigns, and nothing expressed in this Agreement is intended or
shall be construed to give any other Person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
Persons and for the benefit of no other Person; it being understood that the
rights of Purchaser pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to a transferee or transferees of one or more Mortgage Loans in
connection with a Disposition Transaction, including, without limitation, a
depositor or trustee under a pooling and servicing agreement in connection with
a Disposition Transaction which is a securitization of mortgage loans, provided
that upon such assignment, such transferee or transferees shall succeed to such
rights of the Purchaser hereunder; provided that such transferee(s) shall have
no right to further assign such rights to any other person. No owner of a
certificate or other security issued in connection with such a Disposition
Transaction shall be deemed a successor or assign because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Purchaser and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Purchaser as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Purchaser. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby grant
from Seller to Purchaser a security interest in and to all of Seller's right,
title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any guarantees),
general intangibles, chattel paper, instruments, documents, money,
deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit and investment property consisting of, arising
from or relating to any of the property described in the Mortgage
Loans, including the related Notes, Mortgages and title, hazard and
other insurance policies, identified on the Mortgage Loan Schedule
or that constitute Replacement Mortgage Loans, and all distributions
with respect thereto payable after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above payable after the Cut-off
Date;
(c) the possession by Purchaser or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Purchaser or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Purchaser or its assignee, 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 and the proceeds thereof, such security interest would be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. In connection
herewith, Purchaser and its assignee shall have all of the rights and remedies
of a secured party and creditor under the Uniform Commercial Code as in force in
the relevant jurisdiction and may prepare and file such UCC financing statements
as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Purchaser accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Purchaser.
Section 23. Servicing of the Mortgage Loans. The Seller is selling
the Mortgage Loans to the Purchaser on the condition that Seller and the
Purchaser will enter into the Servicing Agreement at or before the Closing.
Commencing with the Closing, the Seller shall service the Mortgage Loans on
behalf of the Purchaser pursuant to and in accordance with the terms of the
Servicing Agreement.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
NCB, FSB
as Seller
By:
------------------------------------
Name:
Title:
COLUMN FINANCIAL, INC.,
as Purchaser
By:
------------------------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 30, 2005, between NCB, FSB and Column Financial, Inc. Capitalized
terms used herein without definition have the meanings given them in or by
reference in the Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignment of Leases" means with respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar instrument, executed by
the related Borrower, assigning to the related mortgagee all of the income,
rents and profits derived from the ownership, operation, leasing or disposition
of all or a portion of such Mortgaged Property, together with any rider,
addendum or amendment thereto.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the states where the Seller or the
Purchaser (including a trustee acquiring Mortgage Loans in connection with a
Disposition Transaction) are located are authorized or obligated by law or
executive order to remain closed.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 30, 2005.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2005 .
"Debt Service Coverage Ratio" means, with respect to any Mortgage
Loan, as of any date of determination, the ratio of (1) the Projected Net Cash
Flow for the related Mortgaged Property on an annualized basis to (2) the
annualized amount of debt service payable on that Mortgage Loan.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) of this Agreement, which exceptions are set forth in Schedule
V attached hereto and made a part hereof.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan, as
of any date of determination, the fraction, expressed as a percentage, the
numerator of which is the principal balance of such Mortgage Loan at the time of
determination, and the denominator of which is the appraised value of the
related Mortgaged Property determined as a cooperatively-owned multifamily
residential building.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Interest Rate" means, with respect to each Mortgage Loan,
the per annum rate of interest at which interest accrues on the outstanding
principal balance of such Mortgage Loan in accordance with the terms of the
related Mortgage Note.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Mortgaged Property" means the underlying real property that secures
a Mortgage Loan, in each case consisting of a parcel or parcels of land improved
by a commercial and/or multi-family building or facility, together with any
personal property (to the extent the same are owned by the Borrower and
necessary in connection with the operation of the related property), fixtures,
leases and other property or rights pertaining thereto.
"Net Mortgage Rate" means with respect to any Mortgage Loan as of
any date of determination, a per annum rate equal to the related Mortgage
Interest Rate minus the related Servicing Fee Rate and the Retained Rate.
"Note" means the original executed promissory note evidencing the
indebtedness of Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Projected Net Cash Flow" means, with respect to each Mortgaged
Property the projected net operating income at such Mortgaged Property, as set
forth in the appraisal obtained with respect to such Mortgaged Property in
connection with the origination of the related Mortgage Loan, assuming such
Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market-rate vacancy assumption and
projected reserves.
"Purchaser" shall have the meaning given such term in the first
sentence of this Agreement.
"Qualified Substitute Mortgage Loan" means a mortgage loan which
must, on the date of substitution: (i) have an outstanding principal balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the due date in the calendar month
during which the substitution occurs; (ii) have a mortgage interest rate (in
absence of a default) not less than the mortgage interest rate of the deleted
Mortgage Loan; (iii) have the same due date as the deleted Mortgage Loan; (iv)
accrue interest on the same basis as the deleted Mortgage Loan (for example, on
the basis of a 360-day year and the actual number of days elapsed); (v) have a
remaining term to stated maturity not greater than, and not more than two (2)
years less than, the remaining term to stated maturity of the deleted Mortgage
Loan; (vi) have an original Loan-to-Value Ratio not higher than that of the
deleted Mortgage Loan and a current Loan-to-Value Ratio not higher than the
current Loan-to-Value Ratio of the deleted Mortgage Loan; (vii) materially
comply as of the date of substitution with all of the representations and
warranties set forth in Exhibit A hereto; (viii) have an Environmental Report
with respect to the related Mortgaged Property that indicates no material
adverse environmental conditions and which will be delivered as a part of the
related Mortgage File; (ix) have an original Debt Service Coverage Ratio of not
less than the greater of the original Debt Service Coverage Ratio and the
current Debt Service Coverage Ratio of the deleted Mortgage Loan; (x) be
determined by an opinion of counsel (at the Seller's expense) to be a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date two (2) years prior to any rated final
distribution date under a related pooling and servicing agreement, if any; (xii)
not be substituted for a deleted Mortgage Loan unless the trustee under a
pooling and servicing agreement or other person acquiring such mortgage loan has
received prior confirmation in writing from each rating agency that has rated
any certificates or other securities representing beneficial interests in the
deleted Mortgage Loan, if any, that such substitution will not result in the
withdrawal, downgrade or qualification of the rating assigned by such rating
agency to any class of certificates or securities then rated by such rating
agency (the cost, if any, of obtaining such confirmation to be paid by the
Seller); (xiii) have been approved by the directing certificate holder or
similar person, if any, in its sole discretion; (xiv) prohibit defeasance within
three (3) years after the Closing Date (or if Purchaser transfers the deleted
Mortgage Loan in a securitization transaction, within two (2) years after the
closing date of such transaction); and (xv) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
REMIC established in connection with any Disposition Transaction or the
imposition of a tax on any such REMIC other than a tax on income expressly
permitted or contemplated to be received under the terms of such Disposition
Transaction, as determined by an opinion of counsel. In the event that one or
more mortgage loans are to be substituted for one or more deleted Mortgage
Loans, then the amounts described in clause (i) shall be determined on the basis
of aggregate principal balances and the interest rates described in clause (ii)
above and the remaining term to stated maturity referred to in clause (v) above
shall be determined on a weighted average basis. When a Qualified Substitute
Mortgage Loan is substituted for a deleted Mortgage Loan, the Seller shall
certify that the Qualified Substitute Mortgage Loan meets all of the
requirements of the above definition and shall send such certification to the
Purchaser. In the event that the deleted Mortgage Loan has been transferred by
Purchaser in a securitization, any Qualified Substitute Mortgage Loan must also
meet any additional requirements of the pooling and servicing agreement or
similar securitization documents.
"REMIC" means a "real estate mortgage investment conduit" as defined
in Section 860D of the Code (or any successor thereto).
"Repurchase Price" means with respect to any Mortgage Loan to be
purchased or replaced by the Seller pursuant to Section 7 of this Agreement, a
price equal to the sum of (i) the outstanding principal balance of such Mortgage
Loan as of the date of purchase; (ii) all accrued and unpaid interest on such
Mortgage Loan at the related annual rate at which interest is scheduled (in
absence of a default and without giving effect to any revised rate) to accrue on
such Mortgage Loan from time to time prior to maturity to, but not including,
the due date in the month of purchase (which includes unpaid master servicing
fees and primary servicing fees, if applicable) plus all related special
servicing fees, if applicable; (iii) all unreimbursed property protection or
servicing advances related to such Mortgage Loan (or such advances reimbursed by
the trust if such Mortgage Loan is held in trust under a pooling and servicing
agreement) plus accrued and unpaid interest on any related advances (including
advances for principal and/or interest) at any applicable advance interest rate;
(iv) if such Mortgage Loan is being repurchased by the Seller following the
expiration of the applicable cure period (as it may be extended), the amount of
any liquidation fees payable to the special servicer, if applicable; and (v) all
reasonable out-of-pocket expenses reasonably incurred or to be incurred by the
Purchaser, a servicer or other person in respect of the Material Breach or
Material Defect giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation and, if such
Mortgage Loan is held in trust under a pooling and servicing agreement, any
unpaid or unreimbursed additional trust fund expenses, if any, allocable to such
Mortgage Loan, determined as of the date of repurchase or substitution, as the
case may be.
"Retained Interest" means with respect to each Mortgage Loan, (x) a
portion of the interest portion (including recoveries with respect to interest
from liquidation proceeds, insurance proceeds, condemnation proceeds or REO
proceeds) of each monthly payment on such Mortgage Loan calculated as provided
in Section 9(b) of this Agreement; (y) the Seller's Yield Maintenance Charge
with respect to the Mortgage Loans and (z) 50% of all prepayment premiums with
respect to the Mortgage Loans.
"Retained Rate" means with respect to each Mortgage Loan, a rate per
annum equal to either: (1) if such Mortgage Loan accrues interest on a 30/360
Basis, 10 basis points; and (2) if such Mortgage Loan accrues interest on an
Actual/360 Basis, the product of (a) 10 basis points, multiplied by (b) a
fraction, the numerator of which is the number of days in the interest accrual
period that corresponds to such distribution date, and the denominator of which
30.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Seller's Yield Maintenance Charge" means, with respect to any
Mortgage Loan, a portion of any yield maintenance charge equal to the excess of
(i) the yield maintenance charge actually payable with respect to the Mortgage
Loan in question, over (ii) the amount that would have been payable as yield
maintenance charge with respect to such Mortgage Loan had the Mortgage Interest
Rate been equal to the Net Mortgage Rate.
"Servicer" means the Seller acting in its capacity as servicer of
the Mortgage Loans on behalf of the Purchaser under the terms of the Servicing
Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Servicing Agreement" means that certain agreement dated as of the
Closing Date between the Purchaser and the Seller which sets forth the terms
upon which the Seller will service the Mortgage Loans on behalf of the Purchaser
commencing with the Closing and related matters, including the retained
servicing rights of the Seller.
"Servicing Fee Rate" means with respect to each Mortgage Loan, 8
basis points attributed to the Mortgage Loan.
"Stated Principal Balance" means with respect to any Mortgage Loan,
as of any date of determination, an amount equal to the unpaid principal balance
thereof as of the Cut-off Date minus the sum of: (i) any payments or other
collections (or advances in lieu thereof) of principal on such Mortgage Loan
that have been distributed to the owner or owners of such Mortgage Loan (which
may include certificate holders) on or before such date of determination, and,
(ii) the principal portion of any realized loss recognized under the applicable
servicing agreement, if any, incurred in respect of or allocable to such
Mortgage Loan during the related collection period under such servicing
agreement. "Stated Principal Balance" means with respect to any Qualified
Substitute Mortgage Loan, an amount equal to the unpaid principal balance
thereof as of the date of substitution minus any scheduled payment of principal
due on or prior to the date of substitution.
"Substitution Shortfall Amount" means with respect to any
substitution of a Qualified Substitute Mortgage Loan or Loans for a Mortgage
Loan or Loans pursuant to Section 7 of this Agreement, the amount, if any, by
which the Repurchase Price or Prices of the deleted Mortgage Loan or Loans as of
the date of substitution exceeds the Stated Principal Balance or Balances of the
Qualified Substitute Mortgage Loan or Loans as of the date of substitution.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[see attached]
# Property Name Address City County State
------------------------------------------------------------------------------------------------------------------------------------
1 00 Xxxx 00xx Xxxxxx Corporation 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX
2 000 Xxxxxxxx Owners Corp. 000 Xxxxxxxx Xxx Xxxx Xxx Xxxx XX
3 311 East 75th Owners Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX
4 333 East 53 Tenants Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX
5 00-00 00xx Xxxxxx Owners, Inc. 00-00 00xx Xxxxxx Xxxxxxxx Xxxxxx XX
6 505 WE Owners Corp. 000 Xxxx Xxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
7 67 Owners Ltd. 00 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
8 000 Xxxxx Xxxxxx Corporation 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
9 Berkshire Village Townhouses, Inc. 0000 Xxxxx 00xx Xxxxxx Xxxxxx Xxxx Xxxxxxxxx XX
10 Breukelen Owners Corp. 00 Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX
11 Capitol House Tenants Corp. 000 Xxxxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxxxx XX
12 Empire State Lofts Limited 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX
00 Xxxxxx Xxxxx Tenants Inc. 000 Xxxxxxxxx Xxxxx Xxx Xxxx Xxx Xxxx XX
14 Xxxxxx Terrace Apartment Corporation 000 Xxxx 00 Xxxxxx Xxx Xxxx Xxx Xxxx XX
15 Greenwich Corp. 000-000 Xxxxxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
00 Xxxxxx Xxxxx Xxxxxxx Corp. 3750 & 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxxxxxx Bronx NY
17 One Xxxxxx Park, Inc. 00 Xxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX
18 Park Towers Owners, Inc. 000 Xxxxx Xxxxxxx Xxxxxxxx Xxxxx XX
19 Riverwood Owners, Inc. 000 Xxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxxxx XX
00 Xxx Xxxxxxx 00xx Xxxxxx Owners Corp. 00-00 00xx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX
21 The Glass House Cooperative, Inc. 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX
Net
Zip Mortgage Mortgage Original Cut-off Remaining Maturity
# Code Rate Rate Balance Balance Term Date ARD Date
--------------------------------------------------------------------------------------------------------------------------------
1 10023 5.510% 5.429% $11,000,000.00 $10,954,538.49 116 5/1/2015 N/A
2 10038 6.100% 6.019% $3,000,000.00 $2,976,140.00 112 1/1/2015 N/A
3 10021 6.330% 6.249% $2,000,000.00 $1,992,520.85 112 1/1/2015 N/A
4 10022 5.070% 4.989% $4,700,000.00 $4,694,823.43 118 7/1/2015 N/A
5 11377 5.690% 5.609% $7,500,000.00 $7,497,090.91 119 8/1/2015 N/A
6 10024 6.110% 6.029% $2,800,000.00 $2,791,707.70 114 3/1/2015 N/A
7 10016 5.470% 5.389% $1,800,000.00 $1,795,702.65 117 6/1/2015 N/A
8 10028 5.390% 5.309% $2,200,000.00 $2,200,000.00 117 6/1/2015 N/A
9 66106 6.010% 5.929% $5,800,000.00 $5,778,436.88 176 5/1/2020 N/A
10 11201 5.330% 5.249% $2,800,000.00 $2,782,734.24 116 5/1/2015 N/A
11 11518 5.560% 5.479% $2,400,000.00 $2,396,271.72 117 6/1/2015 N/A
12 10001 5.070% 4.989% $1,900,000.00 $1,896,584.23 117 6/1/2015 N/A
13 10025 5.940% 5.859% $1,750,000.00 $1,737,389.15 113 2/1/2015 N/A
14 10028 5.380% 5.299% $5,200,000.00 $5,200,000.00 118 7/1/2015 N/A
15 10014 5.730% 5.649% $1,900,000.00 $1,894,356.74 114 3/1/2015 N/A
16 10463 5.450% 5.369% $7,500,000.00 $7,479,447.50 175 4/1/2020 N/A
17 10013 5.530% 5.449% $2,250,000.00 $2,250,000.00 117 6/1/2015 N/A
18 11218 5.390% 5.309% $3,250,000.00 $3,244,685.40 117 6/1/2015 N/A
19 10701 5.680% 5.599% $2,250,000.00 $2,242,824.61 117 6/1/2015 N/A
20 11372 5.300% 5.219% $2,500,000.00 $2,491,830.91 117 6/1/2015 N/A
21 10011 5.100% 5.019% $1,900,000.00 $1,900,000.00 117 6/1/2015 N/A
Original Master
Amort. Remaining Monthly Units/ Interest Servicing Due
# Term Amortization Payment Rooms/Beds Calculation Fee Rate Date
---------------------------------------------------------------------------------------------------------------------------------
1 360 356 $63,055.27 249 Actual/360 0.0800 1
2 360 352 $18,179.84 73 30/360 0.0800 1
3 480 472 $11,467.77 62 30/360 0.0800 1
4 480 478 $23,102.07 140 Actual/360 0.0800 1
5 480 479 $39,657.01 222 Actual/360 0.0800 1
6 480 474 $15,621.23 60 30/360 0.0800 1
7 420 417 $9,630.94 60 30/360 0.0800 1
8 Interest Only Interest Only $9,881.66 23 30/360 0.0800 1
9 360 356 $35,123.25 320 Actual/360 0.0800 1
10 300 296 $17,034.34 127 Actual/360 0.0800 1
11 480 477 $12,603.35 86 Actual/360 0.0800 1
12 480 477 $9,339.13 20 Actual/360 0.0800 1
13 360 353 $10,517.46 48 Actual/360 0.0800 1
14 Interest Only Interest Only $23,637.12 156 Actual/360 0.0800 1
15 480 474 $10,202.97 20 Actual/360 0.0800 1
16 480 475 $38,813.98 213 Actual/360 0.0800 1
17 Interest Only Interest Only $10,368.75 25 30/360 0.0800 1
18 480 477 $16,684.90 131 Actual/360 0.0800 1
19 360 357 $13,030.51 129 30/360 0.0800 1
20 360 357 $13,997.12 209 Actual/360 0.0800 1
21 Interest Only Interest Only $8,187.15 13 Actual/360 0.0800 1
ARD Earthquake Environmental
# Loan (Y/N) Lockout/Defeasance (Y/N) Insurance (Y/N) Insurance (Y/N) Ground Lease
-------------------------------------------------------------------------------------------------------------------
1 No Yes N/A No No
2 No Yes N/A No No
3 No Yes N/A No No
4 No Yes N/A No No
5 No No N/A No No
6 No No N/A No No
7 No No N/A No No
8 No No N/A No No
9 No No N/A No No
10 No No N/A No No
11 No No N/A No No
12 No No N/A No No
13 No No N/A No No
14 No No N/A No No
15 No No N/A No No
16 No No N/A No No
17 No No N/A No No
18 No No N/A No No
19 No No N/A No No
20 No No N/A No No
21 No No N/A No No
ARD
# Loan (Y/N) Letter of Credit Amount (Y/N)
----------------------------------------------------------
1 No Xx
0 Xx Xx
0 Xx Xx
0 Xx Xx
5 No No
6 No No
7 No No
8 No No
9 No No
10 No No
11 No No
12 No No
13 No No
14 No No
15 No No
16 No No
17 No No
18 No No
19 No No
20 No No
21 No No
SCHEDULE III
[RESERVED]
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
REGARDING INDIVIDUAL MORTGAGE LOANS
--------------------------------------------------------------------------------
Rep No. Mortgage Loan (Borrower) Explanation
--------------------------------------------------------------------------------
xxv 000 Xxxxx Xxxxxx Corporation Lender's automatic ACH payment
mechanism was not established at
the time the Borrower's first
payment was due. As a result the
Borrower's first payment was not
received on the due date and its
account became more than 30 days
delinquent. The ACH payment
mechanism is now operational and
the Borrower is current on all
payments required under the Loan
Documents.
--------------------------------------------------------------------------------
xxxvi Mortgage Loans with existing Schedule V-1 lists Mortgage Loans
subordinate indebtedness. with subordinate indebtedness.
--------------------------------------------------------------------------------
xxxviii Mortgage Loans in which the Schedule V-2 lists Mortgage Loans
related Borrower is permitted in which the related Borrower is
to incur contractual liability permitted to incur contractual
in certain limited amounts liability in certain limited amounts
as more particularly set as more particularly set set forth
forth in the applicable in the applicable Mortgage.
Mortgage.
--------------------------------------------------------------------------------
Schedule V-1
Mortgage Loans With Subordinate Indebtedness
Current Secondary
Property Name Financing
-------------------------------- ----------------
00 Xxxx 00xx Xxxxxx Corporation $3,000,000
000 Xxxxxxxx Owners Corp. $1,000,000
311 East 75th Owners Corp. $400,000
333 East 53 Tenants Corp. $500,000
00-00 00xx Xxxxxx Owners, Inc. $2,500,000
505 WE Owners Corp. $500,000
67 Owners Ltd. $500,000
000 Xxxxx Xxxxxx Corporation $500,000
Breukelen Owners Corp. $600,000
Capitol House Tenants Corp. $500,000
Empire State Lofts Limited $500,000
Xxxxxx Court Tenants Inc. $500,000
Xxxxxx Terrace Apartment $1,000,000
Corporation
Greenwich Corp. $200,000
Xxxxxx Manor Terrace Corp. $1,000,000
One Xxxxxx Park, Inc. $500,000
Park Towers Owners, Inc. $1,000,000
Riverwood Owners, Inc. $1,000,000
Xxx Xxxxxxx 00xx Xxxxxx Owners $250,000
Corp.
The Glass House Cooperative, Inc. $1,000,000
Schedule V-2
Mortgage Loans in which the related Borrower is permitted to incur
contractual liability in certain limited amounts as more particularly set
forth in the applicable Mortgage.
Property Name:
00 Xxxx 00xx Xxxxxx Corporation
000 Xxxxxxxx Owners Corp.
311 East 75th Owners Corp.
333 East 53 Tenants Corp.
00-00 00xx Xxxxxx Owners, Inc.
505 WE Owners Corp.
67 Owners Ltd.
000 Xxxxx Xxxxxx Corporation
Berkshire Village Townhouses, Inc.
Breukelen Owners Corp.
Capitol House Tenants Corp.
Empire State Lofts Limited
Xxxxxx Court Tenants Inc.
Xxxxxx Terrace Apartment Corporation
Greenwich Corp.
Xxxxxx Manor Terrace Corp.
One Xxxxxx Park, Inc.
Park Towers Owners, Inc.
Riverwood Owners, Inc.
Xxx Xxxxxxx 00xx Xxxxxx Owners Corp.
The Glass House Cooperative, Inc.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller or
any servicer acting on its behalf regarding the matters referred to, in each
case without having conducted any independent inquiry or due diligence with
respect to such matters and without any actual or implied obligation to make
such inquiry or perform such due diligence, other than making such inquiry or
performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either Seller or any servicer acting on its behalf.
Except as disclosed in the Exception Report to this Agreement:
(i) Immediately prior to the sale, transfer and assignment to the
Purchaser, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which is
supervised and examined by a Federal or State authority, or by
a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act (any of the foregoing, including Seller, a
"Qualified Originator"); or
(B) if originated by a person which is not a Qualified Originator
(any such person, a "Non-Qualified Originator"), then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using
application forms and related credit documents approved
by the Qualified Originator;
2. the Qualified Originator approved each application and
related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such
commitment was issued until the Qualified Originator
agreed to fund such Mortgage Loan;
3. the Mortgage Loan was originated by the Non-Qualified
Originator pursuant to an ongoing, standing relationship
with the Qualified Originator; and
4. the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator,
and, pursuant to the Non-Qualified Originator's ongoing,
standing relationship with the Qualified Originator,
either:
(x) such closing documents reflect the Qualified
Originator as the original mortgagee, and such
Mortgage Loan was actually funded by the Qualified
Originator at the closing thereof;
(y) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(z) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the Purchaser constitutes a
legal, valid and binding assignment of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and clear of
any and all liens, pledges, charges or any other interests or security interests
of any nature encumbering such Mortgage Loan, except for the Retained Interest
and except for interests in servicing rights created or granted under the
Servicing Agreement, subservicing agreements and/or servicing rights purchase
agreements being executed and delivered in connection herewith;
(v) As of origination, to Seller's knowledge, based on the related
Borrower's representations and covenants in the related Mortgage Loan Documents
and such other due diligence as a reasonably prudent commercial mortgage lender
would deem appropriate, the Borrower, lessee and/or operator was in possession
of all licenses, permits, and authorizations then required for use of the
Mortgaged Property which were valid and in full force and effect as of the
origination date and to Seller's actual knowledge, such licenses, permits and
authorizations are still valid and in full force and effect;
(vi) Each related Note, Mortgage, Assignment of Leases (if any) and
other agreement executed by or for the benefit of the related Borrower, any
guarantor or their successors or assigns in connection with such Mortgage Loan
is the legal, valid and binding obligation of the related Borrower, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law); and there is no right of offset, rescission, abatement or diminution or
valid defense or counterclaim available to the related Borrower with respect to
such Note, Mortgage, Assignment of Leases and other agreements, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) The Mortgage File contains an Assignment of Leases, either as
a separate instrument or incorporated into the related Mortgage. Each related
Assignment of Leases creates a valid first priority collateral assignment of, or
a valid first priority lien or security interest in, certain rights under the
related lease or leases, subject only to a license granted to the related
Borrower to exercise certain rights and to perform certain obligations of the
lessor under such lease or leases, including the right to operate the related
leased property, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); no
person other than the related Borrower owns any interest in any payments due
under such lease or leases that is superior to or of equal priority with the
lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to the
Purchaser and related assignment of the Assignment of Leases, if the Assignment
of Leases is a separate document from the Mortgage, is in recordable form (but
for the insertion of the name and address of the assignee and any related
recording information, which is not yet available to Seller), and such
assignments and any, or assignment of any other agreement executed by or for the
benefit of the related Borrower, any guarantor or their successors or assigns in
connection with such Mortgage Loan from the Seller to the Purchaser constitutes
the legal, valid and binding assignment from the Seller to the Purchaser, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws relating to
or affecting the enforcement of creditors' rights or by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(ix) Since origination (A) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified, altered, satisfied,
canceled, subordinated or rescinded in whole or in part and (B) each related
Mortgaged Property has not been released, in whole or in part, from the lien of
the related Mortgage in any manner which materially interferes with the security
intended to be provided by such Mortgage; and since September 30, 2005, no
waiver, consent, modification, assumption, alteration, satisfaction,
cancellation, subordination or rescission which changes the terms of, or the
security for, the Mortgage Loan in any material respect has occurred or been
given;
(x) Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property (subject to Permitted Encumbrances (as defined
below)), except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and materialmen's liens
which are prior to or equal with the lien of the related Mortgage, except those
which are bonded over, escrowed for or insured against by a lender's title
insurance policy (as described below). A UCC financing statement has been filed
and/or recorded (or sent for filing or recording) in all places necessary to
perfect a valid security interest in the personal property necessary to operate
the Mortgaged Property as currently operated; and such security interest is a
first priority security interest, subject to any prior purchase money security
interest in such personal property, any personal property leases applicable to
such personal property and any other security interest in such personal property
which do not, individually or in the aggregate, materially interfere with the
security intended to be provided for such Mortgage Loan. Any security agreement,
chattel mortgage or equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid and enforceable lien on
property described therein, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower in the related
Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material representations
and warranties made by the related Borrower in the related Mortgage Loan
Documents are not true in any material respect;
(xiii) The lien of each related Mortgage is a first priority lien on
the fee and/or leasehold interest of the related Borrower in the principal
amount of such Mortgage Loan or allocated loan amount of the portions of the
Mortgaged Property covered thereby (as set forth in the related Mortgage) after
all advances of principal and is insured by an ALTA lender's title insurance
policy, or its equivalent as adopted in the applicable jurisdiction, provided
that if such policy is yet to be issued, such insurance may be evidenced by a
"marked-up" pro forma policy or title commitment in either case marked as
binding and countersigned by the title company or its authorized agent, either
on its face or by an acknowledged closing instruction or escrow letter), or its
equivalent as adopted in the applicable jurisdiction, insuring the named
mortgagee and its successors and assigns as to such lien, subject only to (A)
the lien of current real property taxes, water charges, sewer rents and
assessments not yet delinquent or accruing interest or penalties, (B) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Borrower's ability to pay
its obligations when they become due or the value of the Mortgaged Property, (C)
the exceptions (general and specific) and exclusions set forth in such policy,
none of which, individually or in the aggregate, materially interferes with the
current general use of the Mortgaged Property or materially interferes with the
security intended to be provided by such Mortgage or with the related Borrower's
ability to pay its obligations when they become due or the value of the
Mortgaged Property, (D) the rights of tenants, as tenants only, under leases,
including subleases, pertaining to the related Mortgaged Property, (E) if the
related Mortgage Loan is cross-collateralized with any other Mortgage Loan in
the trust fund, the lien of the Mortgage for that other Mortgage Loan and (F) if
the related Mortgaged Property is a unit in a condominium, the related
condominium declaration (items (A), (B), (C), (D), (E) and (F), collectively
"Permitted Encumbrances"), and with respect to each Mortgage Loan, such
Permitted Encumbrances do not, individually or in the aggregate, materially
interfere with the security intended to be provided by the related Mortgage, the
current principal use of the related Mortgaged Property, the value of the
related Mortgaged Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such Mortgage Loan; the
premium for such policy was paid in full; such policy (or if it is yet to be
issued, the coverage to be afforded thereby) is issued by a title insurance
company licensed to issue policies in the state in which the related Mortgaged
Property is located (unless such state is Iowa) and is assignable (with the
related Mortgage Loan) to the Purchaser without the consent of or any
notification to the insurer, and is in full force and effect upon the
consummation of the transactions contemplated by this Agreement; no claims have
been made under such policy and the Seller has not undertaken any action or
omitted to take any action, and has no knowledge of any such act or omission,
which would impair or diminish the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully disbursed
and there is no requirement for future advances thereunder, and no future
advances have been made which are not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the origination of the Mortgage
Loan, as of the later of the date of origination of such Mortgage Loan or the
most recent inspection of the related Mortgaged Property by the Seller, as
applicable, and to the knowledge of Seller as of the date hereof, each related
Mortgaged Property is free of any material damage that would affect materially
and adversely the use or value of such Mortgaged Property as security for the
Mortgage Loan (normal wear and tear excepted). If any of the inspection or
engineering reports referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true: (A) the repairs
and/or maintenance necessary to correct such condition have been completed in
all material respects; (B) an escrow of funds is required or a letter of credit
was obtained in an amount reasonably estimated to be sufficient to complete the
repairs and/or maintenance necessary to correct such condition; or (C) the
reasonable estimation at the time of origination of the Mortgage Loan of the
cost to complete the repairs and/or maintenance necessary to correct such
condition represented no more than the greater of (1) $50,000 and (2) 2% of the
value of the related Mortgaged Property as reflected in an appraisal conducted
in connection with the origination of the subject Mortgage Loan, as of the
closing date for each Mortgage Loan and, to the Seller's knowledge, as of the
date hereof, there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property that would have a material adverse
effect on the use or value of the Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months, or the originator of
the Mortgage Loan inspected or caused to be inspected each related Mortgaged
Property within three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any other
contingent interest feature or a negative amortization feature other than the
ARD Loans which may have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the Mortgage
Loan nor the related Mortgage Loan Documents create or grant an equity
participation to Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan complied as of the date
of origination with, or was exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury. Except to the extent any
noncompliance did not materially and adversely affect the value of the related
Mortgaged Property, the security provided by the Mortgage or the related
Borrower's operations at the related Mortgaged Property, any and all other
requirements of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been complied with as of
the date of origination of such Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination process of any Mortgage
Loan and (i) the origination of each Mortgage Loan is in all respects legal,
proper and prudent in accordance with customary commercial mortgage lending
standards and (ii) the servicing and collection of each Mortgage Loan is in all
respects legal, proper and prudent in accordance with servicing standard and no
other person has been granted or conveyed the right to service the Mortgage
Loans or receive any consideration in connection therewith, except as provided
in the Servicing Agreement, any permitted subservicing agreements and/or
servicing rights purchase agreements being executed and delivered in connection
therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related Mortgaged Property
and that are or may become a lien of priority equal to or higher than the lien
of the related Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments required to be made
prior to the delinquency of such taxes and assessments) is sufficient to cover
the payment of such taxes and assessments;
(xxii) All escrow deposits and payments required to be in the
possession or under the control of the Seller pursuant to each Mortgage Loan are
in the possession, or under the control, of the Seller or its agent and there
are no deficiencies (subject to any applicable grace or cure periods) in
connection therewith and all such escrows and deposits are being conveyed by the
Seller to the Purchaser and identified as such with appropriate detail, and any
and all requirements for the disbursement of any such escrows have been complied
with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer meeting the requirements
of the Servicing Agreement, in an amount not less than the lesser of the
principal amount of the related Mortgage Loan and the replacement cost (with no
deduction for physical depreciation) and not less than the amount necessary to
avoid the operation of any co-insurance provisions with respect to the related
Mortgaged Property; each related Mortgaged Property is also covered by business
interruption or rental loss insurance which covers a period of not less than 12
months and comprehensive general liability insurance in amounts generally
required by prudent commercial mortgage lenders for similar properties; all
Mortgaged Properties in California or in a seismic zone 4 or 5 have had a
seismic assessment done and earthquake insurance was obtained to the extent any
such Mortgaged Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the replacement value of the
related improvements; if the Mortgaged Property for any Mortgage Loan is located
within Florida or within 25 miles of the coast of North Carolina, South
Carolina, Georgia, Alabama, Mississippi, Louisiana or Texas, then, such
Mortgaged Property is insured by 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 insurable replacement cost of the improvements located on the
related Mortgaged Property; the Mortgaged Properties securing all of the
Mortgage Loans having a Cut off Date Principal Balance in excess of $3,000,000
have, as of the date hereof, insurance policies in place with respect to acts of
terrorism or damage related thereto (excluding acts involving nuclear,
biological or chemical terrorism), except any such Mortgage Loans that are
listed on the applicable Exception Report. All premiums on such insurance
policies required to be paid as of the date hereof have been paid; such
insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received by the Seller; such insurance
names the lender under the Mortgage Loan and its successors and assigns as a
named or additional insured; each related Mortgage Loan obligates the related
Borrower to maintain all such insurance and, at such Borrower's failure to do
so, authorizes the lender to maintain such insurance at the Borrower's cost and
expense and to seek reimbursement therefor from such Borrower;
(xxiv) There is no monetary default (other than payments due but not
yet 30 days or more past due), breach, violation or event of acceleration
existing under the related Mortgage Loan; and, to the Seller's knowledge, there
is no (A) non-monetary default, breach, violation or event of acceleration
existing under the related Mortgage Loan or (B) event (other than payments due
but not yet 30 days or more past due) which, with the passage of time or with
notice and the expiration of any grace or cure period, would and does constitute
a default, breach, violation or event of acceleration, which default, breach,
violation or event of acceleration, in the case of either (A) or (B) materially
and adversely affects the use or value of the Mortgage Loan or 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 or warranty made by the Seller in any of the other
paragraphs of this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the Cut-off Date no
Mortgage Loan is 30 or more days delinquent in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to render
the rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure or, subject to applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the Borrower which would
interfere with such right to foreclose, except, in the case of either (A) or (B)
as the enforcement of the Mortgage may be limited by bankruptcy, insolvency,
reorganization, moratorium, redemption or other laws affecting the enforcement
of creditors' rights or by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law). No
Borrower is a debtor in a state or federal bankruptcy or insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set forth in certain
environmental reports and, except as commonly used in the operation and
maintenance of properties of similar kind and nature to the Mortgaged Property,
in accordance with prudent management practices and applicable law, and in a
manner that does not result in any contamination of the Mortgaged Property, it
has not used, caused or permitted to exist and will not use, cause or permit to
exist on the related Mortgaged Property any hazardous materials in any manner
which violates federal, state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of hazardous materials
or other environmental laws; the related Borrower or an affiliate thereof agreed
to indemnify, defend and hold the mortgagee and its successors and assigns
harmless from and against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever (including attorneys' fees
and costs) paid, incurred or suffered by, or asserted against, any such party
resulting from a breach of the foregoing representations, warranties or
covenants given by the Borrower in connection with such Mortgage Loan. A Phase I
environmental report (or, with respect to residential cooperative loans with an
original principal balance of $350,000 or less, a transaction screen process
report meeting ASTM standards) and, with respect to certain Mortgage Loans, a
Phase II environmental report, was conducted by a reputable independent
environmental consulting firm in connection with such Mortgage Loan, which
report (or transaction screen) did not indicate any material non-compliance with
applicable environmental laws or material existence of hazardous materials or,
if any material non-compliance or material existence of hazardous materials was
indicated in any such report (or transaction screen), then at least one of the
following statements is true: (A) funds reasonably estimated to be sufficient to
cover the cost to cure any material non-compliance with applicable environmental
laws or material existence of hazardous materials have been escrowed, or a
letter of credit in such amount has been provided, by the related Borrower and
held by the related mortgagee; (B) if the environmental report recommended an
operations and maintenance plan, but not any material expenditure of funds, an
operations and maintenance plan has been required to be obtained by the related
Borrower; (C) the environmental condition identified in the related
environmental report was remediated or abated in all material respects prior to
the date hereof; (D) a no further action or closure letter was obtained from the
applicable governmental regulatory authority (or the environmental issue
affecting the related Mortgaged Property was otherwise listed by such
governmental authority as "closed"); (E) such conditions or circumstances
identified in the Phase I environmental report were investigated further and
based upon such additional investigation, an environmental consultant
recommended no further investigation or remediation; (F) a party with financial
resources reasonably estimated to be adequate to cure the condition or
circumstance provided a guaranty or indemnity to the related Borrower to cover
the costs of any required investigation, testing, monitoring or remediation; (G)
the expenditure of funds reasonably estimated to be necessary to effect such
remediation is not greater than $50,000 and 2% of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's environmental insurance
policy was obtained and is a part of the related Mortgage File. Notwithstanding
the preceding sentence, with respect to certain Mortgage Loans with an original
principal balance of less than $3,000,000, no environmental report may have been
obtained, but (in such cases where a Phase I environmental report was not
obtained) a lender's secured creditor impaired property environmental insurance
policy was obtained with respect to each such Mortgage Loan. Each of such
secured creditor impaired property environmental insurance policies is a part of
the related Mortgage File. Each of such environmental insurance policies is in
full force and effect, is in an amount not less than the 100% of the balance of
the related Mortgage Loan, and has a term extending not less than five years
after the maturity date of the related Mortgage Loan; the premiums for such
policies have been paid in full and the Purchaser is named as an insured under
each of such policies; and Seller has delivered to the insurer all related
environmental reports in its possession. To Seller's knowledge, in reliance on
such environmental reports and except as set forth in such environmental
reports, each Mortgaged Property is in material compliance with all applicable
federal, state and local environmental laws, and to Seller's knowledge, no
notice of violation of such laws has been issued by any governmental agency or
authority, except, in all cases, as indicated in such environmental reports or
other documents previously provided to the Rating Agencies; and the Seller has
not taken any action which would cause the Mortgaged Property to not be in
compliance with all federal, state and local environmental laws pertaining to
environmental hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance of such Mortgage
Loan if, without the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses associated with obtaining
such consent), the related Mortgaged Property is directly or indirectly
transferred or sold, and (2) except with respect to transfers of certain
interests in the related Borrower to persons already holding interests in the
Borrower, their family members, affiliated companies and other estate planning
related transfers that satisfy certain criteria specified in the related
Mortgage (which criteria is consistent with the practices of prudent commercial
mortgage lenders) or any transfers in connection with the death or disability of
owners of the Borrower or, if the related Mortgaged Property is a residential
cooperative property, transfers of stock of the related Borrower in connection
with the assignment of a proprietary lease for a unit in the related Mortgaged
Property by a tenant-shareholder of the related Borrower to other persons who by
virtue of such transfers become tenant-shareholders in the related Borrower,
each Mortgage Loan also contains the provisions for the acceleration of the
payment of the unpaid principal balance of such Mortgage Loan if, without the
consent of the holder of the Mortgage (and the Mortgage requires the mortgagor
to pay all fees and expenses associated with obtaining such consent), a majority
interest in the related Borrower is directly or indirectly transferred or sold;
(xxix) All improvements included in the related appraisal are within
the boundaries of the related Mortgaged Property, except for encroachments onto
adjoining parcels for which the Seller has obtained title insurance against
losses arising therefrom or that do not materially and adversely affect the use
or value of such Mortgaged Property. No improvements on adjoining parcels
encroach onto the related Mortgaged Property except for encroachments that do
not materially and adversely affect the value of such Mortgaged Property, the
security provided by the Mortgage, the current use of the Mortgaged Property or
the related Borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is set
forth in the Mortgage Loan Schedule attached as an exhibit to this Agreement is
complete and accurate in all material respects as of the dates of the
information set forth therein (or, if not set forth therein, as of the Cut-Off
Date);
(xxxi) With respect to any Mortgage Loan where all or any portion of
the estate of the related Borrower therein is a leasehold estate under a ground
lease, and the related Mortgage does not also encumber the related lessor's fee
interest in such Mortgaged Property, based upon the terms of the ground lease
and any estoppel received from the ground lessor, the Seller represents and
warrants that:
(A) The ground lease or a memorandum regarding such ground lease
has been duly recorded. The ground lease permits the interest
of the lessee to be encumbered by the related Mortgage and
does not restrict the use of the related Mortgaged Property by
such lessee, its successors or assigns in a manner that would
adversely affect the security provided by the related
Mortgage. To Seller's knowledge, there has been no material
change in the terms of the ground lease since its recordation,
except by any written instruments which are included in the
related Mortgage File;
(B) The lessor under such ground lease has agreed in a writing
included in the related Mortgage File that the ground lease
may not be amended, modified, canceled or terminated without
the prior written consent of the lender and that any such
action without such consent is not binding on the lender, its
successors or assigns;
(C) The ground lease has an original term (or an original term
plus one or more optional renewal terms, which, under all
circumstances, may be exercised, and will be enforceable, by
the lender) that extends not less than 10 years beyond the
amortization term of the related Mortgage Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not
subject to any liens or encumbrances superior to, or of equal
priority with, the Mortgage, subject to Permitted Encumbrances
and liens that encumber the ground lessor's fee interest;
(E) The ground lease is assignable to the lender and its assigns
without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full force and
effect, and the Seller has no actual knowledge that any
default beyond applicable notice and grace periods has
occurred or that there is any existing condition which, but
for the passage of time or giving of notice, would result in a
default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement, which is part of
the Mortgage File, between the lessor and the lessee requires
the lessor to give notice of any default by the lessee to the
lender;
(H) A lender is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under the ground lease through legal
proceedings, or to take other action so long as the lender is
proceeding diligently) to cure any default under the ground
lease which is curable after the receipt of notice of any
default, before the lessor may terminate the ground lease. All
rights of the lender under the ground lease and the related
Mortgage (insofar as it relates to the ground lease) may be
exercised by or on behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable
by a prudent commercial mortgage lender. The lessor is not
permitted, in absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any subtenant of
the lessee in the relevant portion of the Mortgaged Property
subject to the ground lease for any reason, or in any manner,
which would adversely affect the security provided by the
related Mortgage;
(J) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of
all or part of the related Mortgaged Property, with the lender
or a trustee appointed by it having the right to hold and
disburse such proceeds as repair or restoration progresses
(except in any case where a provision entitling another party
to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial mortgage
lender), or to the payment of the outstanding principal
balance of the Mortgage Loan, together with any accrued
interest, except that in the case of condemnation awards, the
ground lessor may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related Mortgage,
any related insurance proceeds, or condemnation award in
respect of a total or substantially total loss or taking of
the related Mortgaged Property will be applied first to the
payment of the outstanding principal balance of the Mortgage
Loan, together with any accrued interest (except as provided
by applicable law or in cases where a different allocation
would not be viewed as commercially unreasonable by a prudent
commercial mortgage lender, taking into account the relative
duration of the ground lease and the related Mortgage and the
ratio of the market value of the related Mortgaged Property to
the outstanding principal balance of such Mortgage Loan).
Until the principal balance and accrued interest are paid in
full, neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the lender as a result of
any casualty or partial condemnation, except to provide for an
abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for any
reason, including rejection of the ground lease in a
bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a material
portion of the estate of the related Borrower therein is a leasehold estate, but
the related Mortgage also encumbers the related lessor's fee interest in such
Mortgaged Property: (A) such lien on the related fee interest is evidenced by
the related Mortgage, (B) such Mortgage does not by its terms provide that it
will be subordinated to the lien of any other mortgage or encumbrance upon such
fee interest, (C) upon the occurrence of a default under the terms of such
Mortgage by the related Borrower, any right of the related lessor to receive
notice of, and to cure, such default granted to such lessor under any agreement
binding upon the Seller would not be considered commercially unreasonable in any
material respect by prudent commercial mortgage lenders, (D) the related lessor
has agreed in a writing included in the related Mortgage File that the related
ground lease may not be amended or modified without the prior written consent of
the lender and that any such action without such consent is not binding on the
lender, its successors or assigns, and (E) the related ground lease is in full
force and effect, and the Seller has no actual knowledge that any default beyond
applicable notice and grace periods has occurred or that there is any existing
condition which, but for the passage of time or giving of notice, would result
in a default under the terms of such ground lease;
(xxxiii) [Reserved];
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on a
commercial property or multifamily residential property, and (B) the fair market
value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the related
Mortgaged Property, nor are there any preferred equity interests held by the
Seller or any mezzanine debt related to such Mortgaged Property;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $4,000,000 require that the related Borrower be a single-purpose
entity (for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan). To Seller's actual knowledge, each Borrower
has fully complied with the requirements of the related Note and Mortgage and
Borrower's organizational documents regarding single-purpose entity status;
(xxxviii) Except in cases where the related Mortgage Property is a
residential cooperative property, each Mortgage Loan prohibits the related
Borrower from mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the Borrower, without the prior written consent
of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified in the Note or Mortgage which would be acceptable to a
reasonably prudent commercial mortgage lender, and, except in connection with
trade debt and equipment financings in the ordinary course of Borrower's
business, from carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or, with respect to
each Mortgage Loan having an original principal balance of less than $4,000,000,
any unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent to a
dedicated road, or has access to an irrevocable easement permitting ingress and
egress, (B) is served by public utilities and services generally available in
the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of the
related Mortgaged Property, if any portion of the improvements on the Mortgaged
Property is located in an area identified by the Federal Emergency Management
Agency or the Secretary of Housing and Urban Development as having special flood
hazards categorized as Zone "A" or Zone "V" and flood insurance is available,
the terms of the Mortgage Loan require the Borrower to maintain flood insurance,
or at such Borrower's failure to do so, authorizes the Lender to maintain such
insurance at the cost and expense of the Borrower and such insurance is in full
force and effect in an amount not less than the lesser of (A) the replacement
costs of the material improvements on such Mortgaged Property, (B) the balance
of the Mortgage Loan and (C) the maximum amount of insurance available under the
applicable National Flood Insurance Administration Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or has been substituted in accordance
with applicable law or may be substituted in accordance with applicable law by
the related mortgagee, and except in connection with a trustee's sale after a
default by the related Borrower, no fees are payable to such trustee;
(xliii) RESERVED.
(xliv) To the knowledge of the Seller as of the date hereof, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any Borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such Borrower's ability to perform
under the related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the related
Borrower (other than mezzanine debt, other existing subordinate debt and the
acquisition of preferred equity interests by the preferred equity interest
holder), and no funds have, to the Seller's knowledge, been received from any
person other than, or on behalf of, the related Borrower, for, or on account of,
payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) No Mortgage Loan requires the lender to release any portion
of the Mortgaged Property from the lien of the related Mortgage except upon (A)
payment in full or defeasance of the related Mortgage Loan, (B) the satisfaction
of certain legal and underwriting requirements that would be customary for
prudent commercial mortgage lenders, which in all events include payment of a
release price at least 125% of the appraised value of the property to be
released or of the allocated loan amount of such property, (C) releases of
unimproved out-parcels or (D) releases of portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in the
appraisal of the Mortgaged Property or of that portion of the Mortgaged Property
used to calculate the loan-to-value ratio of the Mortgaged Property for
underwriting purposes. No release or partial release of any Mortgaged Property,
or any portion thereof, expressly permitted or required pursuant to the terms of
any Mortgage Loan would constitute a significant modification of the related
Mortgage Loan under Treas. Reg. Section 1.860G-2(b)(2);
(xlix) Except as provided in paragraphs (xxxi)(J) and (K) above, any
insurance proceeds or condemnation awards in respect of a casualty loss or
taking will be applied either to (A) the repair or restoration of all or part of
the related Mortgaged Property, with, in the case of all casualty losses or
takings in excess of a specified amount or percentage that a prudent commercial
lender would deem satisfactory and acceptable, the lender (or a trustee
appointed by it) having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in any case where a provision entitling
another 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 such Mortgage Loan together with
any accrued interest thereon;
(l) Each Form UCC-1 financing statement, if any, filed with respect
to personal property constituting a part of the related Mortgaged Property and
each Form UCC-2 or UCC-3 assignment, if any, of such financing statement to the
Seller was, and each Form UCC-3 assignment, if any, of such financing statement
in blank which the Purchaser or its designee is authorized to complete (but for
the insertion of the name of the assignee and any related filing information
which is not yet available to the Seller) is, in suitable form for filing in the
filing office in which such financing statement was filed;
(li) To the Seller's knowledge, (A) each commercial lease covering
more than 10% (20% in the case of any Mortgage Loan having an original principal
balance less than $2,500,000) of the net leaseable area of the related Mortgaged
Property is in full force and effect and (B) there exists no default under any
such commercial lease either by the lessee thereunder or by the related Borrower
that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject 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. With respect to
any Mortgage Loan with a Stated Principal Balance as of the Closing Date of over
$10,000,000, if the related Mortgaged Property does not so comply, to the extent
the Seller is aware of such non-compliance, it has required the related Borrower
to obtain law and ordinance insurance coverage in amounts customarily required
by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulation Section 1.860G-2(f)(2) that treats a defective obligation as
a qualified mortgage or any substantially similar successor provision), the
related Mortgaged Property, if acquired by a REMIC in connection with the
default or imminent default of such Mortgage Loan would constitute "foreclosure
property" within the meaning of Code Section 860G(a)(8) and all Prepayment
Premiums and Yield Maintenance Charges with respect to such Mortgage Loan
constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the Borrower is required to provide an opinion of counsel
that the Purchaser (and its successors and assigns) has a perfected security
interest in such collateral prior to any other claim or interest, (F) the
Borrower is required to pay all Rating Agency fees associated with defeasance
(if rating confirmation is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, (G) with respect to any significant
trust mortgage loan, the Borrower is required to provide an opinion of counsel
that such defeasance will not cause any REMIC created under any pooling and
servicing agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any significant trust mortgage loan,
the Borrower must obtain Rating Agency confirmation from each Rating Agency that
the defeasance would not result in such Rating Agency's withdrawal, downgrade or
qualification of the then current rating of any class of certificates rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide that
the related Borrower thereunder shall be liable to the Seller for any losses
incurred by the Seller due to (A) the misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the related Borrower;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced amortizing
on its initial scheduled Due Date and provides that: (A) its Mortgage Rate will
increase by no more than two percentage points in connection with the passage of
its Anticipated Repayment Date and so long as the Mortgage Loan is an asset of
the Trust Fund; (B) its Anticipated Repayment Date is not less than seven years
following the origination of such Mortgage Loan; (C) no later than the related
Anticipated Repayment Date, if it has not previously done so, the related
Borrower is required to enter into a "lockbox agreement" whereby all revenue
from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (D) any cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or acquisition
of each Mortgage Loan, Seller obtained an appraisal of the related Mortgage
Property, which appraisal is signed by an appraiser, who, to Seller's actual
knowledge, had no interest, direct or indirect, in the Borrower, the Mortgage
Property or in any loan made on the security of the Mortgage Property, and whose
compensation was not affected by the approval or disapproval of the Mortgage
Loan; and
(lviii) The Seller has delivered to the Purchaser or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of NCB, FSB;
2. that _______________ is the owner and holder of a mortgage loan
in the original principal amount of $______________ secured by a mortgage (the
"Mortgage") on the premises known as ______________ ______________ located in
______________;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by
______________, to _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Column
Financial, Inc. (the "Purchaser"), NCB, FSB covenants and agrees (a) promptly to
deliver to the Purchaser the original Note if it is subsequently found, and (b)
to indemnify and hold harmless the Purchaser and its successors and assigns from
and against any and all costs, expenses and monetary losses arising as a result
of _______________'s failure to deliver said original Note to the Purchaser.
NCB, FSB
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2005
EXHIBIT C
NATIONAL CONSUMER COOPERATIVE BANK
MORTGAGE LOAN PURCHASE AGREEMENT
See Attached
EXECUTED COPY
________________________________________________________________________________
COLUMN FINANCIAL, INC.
(Purchaser)
and
NATIONAL CONSUMER COOPERATIVE BANK
(Seller)
___________________________________
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of September 30, 2005
___________________________________
________________________________________________________________________________
TABLE OF CONTENTS
Page
----
Section 1. Transactions on or Prior to the Closing Date....................
Section 2. Closing Date Actions............................................
Section 3. Conveyance of Mortgage Loans....................................
Section 4. Purchaser's Conditions to Closing...............................
Section 5. Seller's Conditions to Closing..................................
Section 6. Representations and Warranties of Seller........................
Section 7. Obligations of Seller...........................................
Section 8. Cooperation in Disposition Transactions.........................
Section 9. Servicing; Retained Interest....................................
Section 10. Representations and Warranties of Purchaser.....................
Section 11. Survival of Certain Representations, Warranties and Covenants...
Section 12. Transaction Expenses............................................
Section 13. Recording Costs and Expenses....................................
Section 14. Notices.........................................................
Section 15. Examination of Mortgage Files...................................
Section 16. Successors......................................................
Section 17. Governing Law...................................................
Section 18. Severability....................................................
Section 19. Further Assurances..............................................
Section 20. Counterparts....................................................
Section 21. Treatment as Security Agreement.................................
Section 22. Recordation of Agreement........................................
Schedule I Schedule of Transaction Terms
Schedule II Mortgage Loan Schedule
Schedule III [Reserved]
Schedule IV Mortgage Loans with Lost Notes
Schedule V Exceptions to Seller's Representations and Warranties
Exhibit A Representations and Warranties Regarding the Mortgage Loans
Exhibit B Form of Lost Note Affidavit
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of September 30, 2005, is made by and between NATIONAL CONSUMER COOPERATIVE
BANK, a federally chartered corporation ("Seller"), and COLUMN FINANCIAL, INC.,
a Delaware corporation ("Purchaser").
RECITALS
I. Capitalized terms used herein without definition have the
meanings ascribed to them in the Schedule of Transaction Terms attached hereto
as Schedule I, which is incorporated herein by this reference.
III. On the Closing Date, and on the terms set forth herein, Seller
has agreed to sell to Purchaser and Purchaser has agreed to purchase from Seller
the mortgage loans identified on the schedule (the "Mortgage Loan Schedule")
annexed hereto as Schedule II (each such mortgage loan, a "Mortgage Loan" and,
collectively, the "Mortgage Loans"). Purchaser intends to securitize, sell or
otherwise dispose of such Mortgage Loans in a subsequent transaction (any such
transaction, a "Disposition Transaction").
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below and for
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, Purchaser and Seller agree as follows:
Section 1. Transactions on or Prior to the Closing Date. On or
prior to the Closing Date, Seller shall have delivered the Mortgage Files with
respect to each of the Mortgage Loans listed in the Mortgage Loan Schedule to
Purchaser or its designee, against receipt by Seller of a written receipt,
pursuant to an arrangement between Seller and the Purchaser; provided, however,
that item (xvi) in the definition of Mortgage File (below) shall be delivered to
the Servicer for inclusion in the Servicer File (defined below) with a copy
delivered to the Purchaser for inclusion in the Mortgage File.
Section 2. Closing Date Actions. The sale of the Mortgage Loans
shall take place on the Closing Date. The closing (the "Closing") shall take
place at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP, Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as agreed upon between
the parties hereto. On the Closing Date, Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, subject to the continued servicing of the
Mortgage Loans by Servicer, the Mortgage Loans pursuant to this Agreement for
the Mortgage Loan Purchase Price payable in accordance with instructions
previously provided to Purchaser by Seller; provided, however, that Seller
expressly hereby retains and does not transfer to Purchaser the Retained
Interest. The Mortgage Loan Purchase Price shall be paid by Purchaser to Seller
or at its direction by wire transfer in immediately available funds to an
account designated by Seller on or prior to the Closing Date. The "Mortgage Loan
Purchase Price" paid by Purchaser shall be equal to the amount that the
Purchaser and the Seller have mutually agreed upon as set forth in the Closing
Statement (which amount includes, without limitation, accrued interest).
Section 3. Conveyance of Mortgage Loans. On the Closing Date,
Seller shall sell, convey, assign and transfer, subject to the continued
servicing of the Mortgage Loans by Servicer, without recourse except as provided
herein, to Purchaser, free and clear of any liens, claims or other encumbrances,
all of Seller's right, title and interest in, to and under: (i) each of the
Mortgage Loans identified on the Mortgage Loan Schedule and (ii) all property of
Seller described in Section 21(b) of this Agreement, including, without
limitation, (A) all scheduled payments of interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date and (B) all other payments
of interest, principal or prepayment premiums received on or with respect to the
Mortgage Loans after the Cut-off Date, other than any such payments of interest
or principal or prepayment premiums that were due on or prior to the Cut-off
Date and excluding the Retained Interest which is not being transferred herein.
Each Mortgage File shall contain the following documents:
(i) the original Note (or with respect to those Mortgage
Loans listed in Schedule IV hereto, a "lost note affidavit"
substantially in the form of Exhibit B hereto and a true and complete
copy of the Note), bearing, or accompanied by, all prior and intervening
endorsements or assignments showing a complete chain of endorsement or
assignment from the Mortgage Loan Originator either in blank or to
Seller, and further endorsed (at the direction of Purchaser given
pursuant to this Agreement) by Seller, on its face or by allonge
attached thereto, without recourse, either in blank or to the order of
the Purchaser in the following form: "Pay to the order of Column
Financial, Inc., without recourse, representation or warranty, express
or implied";
(ii) a duplicate original Mortgage or a counterpart thereof
or, if such Mortgage has been returned by the related recording office,
(A) an original, (B) a certified copy or (C) a copy thereof from the
applicable recording office, and originals or counterparts (or
originals, certified copies or copies from the applicable recording
office) of any intervening assignments thereof from the Mortgage Loan
Originator to Seller, in each case in the form submitted for recording
or, if recorded, with evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form (except for any missing recording information and, if applicable,
completion of the name of the assignee), from Seller (or the Mortgage
Loan Originator) either in blank or to "Column Financial, Inc.";
(iv) an original, counterpart or copy of any related
Assignment of Leases (if such item is a document separate from the
Mortgage), and the originals, counterparts or copies of any intervening
assignments thereof from the Mortgage Loan Originator of the Loan to
Seller, in each case in the form submitted for recording or, if
recorded, with evidence of recording thereon;
(v) an original assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in
recordable form (except for any missing recording information and, if
applicable, completion of the name of the assignee), from Seller (or the
Mortgage Loan Originator), either in blank or to "Column Financial,
Inc.";
(vi) an original or true and complete copy of any related
security agreement (if such item is a document separate from the
Mortgage), and the originals or copies of any intervening assignments
thereof from the Mortgage Loan Originator to Seller;
(vii) an original assignment of any related security
agreement (if such item is a document separate from the Mortgage), from
Seller (or the Mortgage Loan Originator) either in blank or to "Column
Financial, Inc.," which assignment may be included as part of an omnibus
assignment covering other documents relating to the Mortgage Loan
(provided that such omnibus assignment is effective under applicable
law);
(viii) originals or copies of all (A) assumption agreements,
(B) modifications, (C) written assurance agreements and (D) substitution
agreements, together with any evidence, when appropriate, of recording
thereon or in the form submitted for recording, in those instances where
the terms or provisions of the Mortgage, Note or any related security
document have been modified or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof (together with all endorsements or riders that were issued with
or subsequent to the issuance of such policy), or if the policy has not
yet been issued, the original or a copy of a binding written commitment
(which may be a pro forma or specimen title insurance policy which has
been accepted or approved in writing by the related title insurance
company) or interim binder that is marked as binding and countersigned
by the title company, insuring the priority of the Mortgage as a first
lien on the related Mortgaged Property, relating to such Mortgage Loan;
(x) the original or a counterpart of any guaranty of the
obligations of the Borrower under the Mortgage Loan;
(xi) UCC acknowledgement, certified or other copies of all
UCC financing statements and continuation statements which show the
filing or recording thereof (including the filing number or other
similar filing information) or copies thereof in the form submitted for
filing or recording sufficient to perfect (and maintain the perfection
of) the security interest held by the Mortgage Loan Originator (and each
assignee prior to the Purchaser) in and to the personalty of the
Borrower at the Mortgaged Property, and original UCC assignments in a
form suitable for filing or recording, sufficient to transfer such
security interest to the Purchaser;
(xii) the original or copy of any power of attorney (with
evidence of recording thereon) granted by the Borrower if the Mortgage,
Note or other document or instrument referred to above was not signed by
the Borrower;
(xiii) an original or copy of any subordination agreement,
standstill agreement or other intercreditor, co-lender or similar
agreement relating to subordinate indebtedness, including any mezzanine
loan documents or preferred equity documents;
(xiv) with respect to any cash collateral accounts and
lock-box accounts, an original or copy of any related account control
agreement and a copy of the UCC financing statements, if any, submitted
for filing with respect to Seller's security interest in the cash
collateral accounts and lock-box accounts and all funds contained
therein (together with UCC financing statement assignments assigning
such security interest to the Purchaser);
(xv) an original or copy of any related Loan Agreement (if
separate from the related Mortgage);
(xvi) the originals of letters of credit, if any, relating to
the Mortgage Loans and amendments thereto which entitles the Purchaser
or its designee to draw thereon; subject, however, to the proviso set
forth in Section 1;
(xvii) any related environmental insurance policy and any
environmental guarantee or indemnity agreement;
(xviii) the original ground lease, if any, and any amendments,
modifications or extensions thereto, and any ground lease estoppel or a
certified copy thereof; and
(xix) any additional documents required to be added to the
Mortgage File pursuant to the Servicing Agreement.
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC financing statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC financing statements to be filed in accordance
with the transfer contemplated by this Agreement) above, with evidence of
recording or filing thereon on the Closing Date solely because of a delay caused
by the public recording or filing office where such document or instrument has
been delivered for recordation or filing, Seller: (i) shall deliver, or cause to
be delivered, to the Purchaser or its designee a duplicate original or true copy
of such document or instrument certified by the applicable public recording or
filing office, the applicable title insurance company or Seller to be a true and
complete duplicate original or copy of the original thereof submitted for
recording or filing; and (ii) shall deliver, or cause to be delivered, either
the original of such non-delivered document or instrument, or a photocopy
thereof (certified by the appropriate public recording or filing office to be a
true and complete copy of the original thereof submitted for recording or
filing), with evidence of recording or filing thereon, within 365 days after the
Closing Date, which period may be extended up to two times, in each case for an
additional period of 90 days (provided that Seller, as certified in writing to
Purchaser prior to each such 90-day extension, is in good faith attempting to
obtain from the appropriate recording or filing office such original or
photocopy). Compliance with this paragraph will satisfy Seller's delivery
requirements under this Section 3 with respect to the subject document(s) and
instrument(s).
Notwithstanding the foregoing, in the event that, in connection with
any Mortgage Loan, Seller cannot deliver, or cause to be delivered, an original,
counterpart or certified copy, as applicable, of any of the documents and/or
instruments required to be delivered pursuant to clauses (ii), (iv), (viii),
(xi) (other than assignments of UCC financing statements to be recorded or filed
in accordance with the transfer contemplated by this Agreement), (xii) and (xiv)
(other than assignments of UCC financing statements to be filed in accordance
with the transfer contemplated by this Agreement) above with evidence of
recording or filing thereon for any other reason, including without limitation,
that such non-delivered document or instrument has been lost, the delivery
requirements of this Agreement shall be deemed to have been satisfied and such
non-delivered document or instrument shall be deemed to have been included in
the related Mortgage File if a photocopy of such non-delivered document or
instrument (with evidence of recording or filing thereon and certified by the
appropriate recording or filing office to be a true and complete copy of the
original thereof as filed or recorded) is delivered to the Purchaser or its
designee on or before the Closing Date.
Notwithstanding the foregoing, in the event that the Seller cannot
deliver to the Purchaser or its designee any UCC-2 or UCC-3 assignment with the
filing information of the UCC-1 financing statement with respect to any Mortgage
Loan, solely because such UCC-1 financing statement has not been returned by the
public filing office where such UCC-1 financing statement has been delivered for
filing, Seller shall deliver or cause to be delivered to the Purchaser or its
designee a photocopy of such UCC-2 or UCC-3 assignment with the filing
information left blank. The Seller, promptly upon receipt of the applicable
filing information of the UCC-1 financing statement being so assigned, shall
deliver or cause to be delivered to the Purchaser or its designee the original
UCC-2 or UCC-3 assignment with all appropriate filing information set forth
thereon.
Notwithstanding the foregoing, Seller may, at its sole cost and
expense, but is not obligated to, engage a third-party contractor to prepare or
complete in proper form for filing or recording any and all assignments of
Mortgage, assignments of Assignments of Leases and assignments of UCC financing
statements to the Purchaser to be delivered pursuant to clauses (iii), (v) and
(xi) above (collectively, the "Assignments"), to submit those Assignments for
filing and recording, as the case may be, in the applicable public filing and
recording offices and to deliver those Assignments to the Purchaser or its
designee as those Assignments (or certified copies thereof) are received from
the applicable filing and recording offices with evidence of such filing or
recording indicated thereon. However, in the event Seller engages a third-party
contractor as contemplated in the immediately preceding sentence, the rights,
duties and obligations of Seller pursuant to this Agreement remain binding on
the Seller; and, if Seller does not engage a third party as contemplated by the
immediately preceding sentence, then Seller will still be liable for recording
and filing fees and expenses of the Assignments as and to the extent
contemplated by Section 13 hereof.
On and after the Closing Date, Seller shall deliver the Servicer
Files with respect to each of the Mortgage Loans to the Servicer for the benefit
of the Purchaser. Each such Servicer File shall contain all documents and
records in the Seller's possession relating to such applicable Mortgage Loans
(including reserve and escrow agreements, rent rolls, leases, environmental and
engineering reports, third-party underwriting reports, appraisals, surveys,
legal opinions, estoppels, cash management agreements, lockbox agreements,
financial statements, operating statements and any other information provided by
the respective Borrower from time to time, but excluding any draft documents,
attorney/client communications, which are privileged or constitute legal or
other due diligence analyses and documents prepared by the Seller or any of its
Affiliates solely for internal communication, credit underwriting or due
diligence analyses) that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with copies of all instruments
and documents which are required to be a part of the related Mortgage File in
accordance with the definition thereof.
Seller shall, promptly after the Closing Date, but in all events
within three (3) Business Days after the Closing Date, cause all funds on
deposit in escrow accounts maintained with respect to the Mortgage Loans in the
name of Seller or any other name, to be transferred to or at the direction of
the Servicer.
The Purchaser shall be entitled to all scheduled principal payments
due after the Cut-off Date, all other payments of principal due and collected
after the Cut-off Date, and all payments of interest on the Mortgage Loans due
after the Cut-off Date, minus that portion of any such payment which is
allocable to either (i) the Retained Interest or (ii) the period on or prior to
the Cut-off Date. All scheduled payments of principal due on or before the
Cut-off Date and collected after the Cut-off Date, together with the
accompanying interest payments, shall belong to Seller.
Upon the sale of the Mortgage Loans from Seller to Purchaser
pursuant hereto, the ownership of each Note, the related Mortgage and the
contents of the related Mortgage File shall be vested in Purchaser, subject to
the Retained Interest, and the ownership of all records and documents with
respect to the related Mortgage Loan prepared by or which come into the
possession of Seller as seller of the Mortgage Loans hereunder, exclusive in
each case of documents prepared by Seller or any of its Affiliates solely for
internal credit analysis or other internal uses or any attorney client
privileged communication, shall immediately vest in Purchaser, subject to the
Retained Interest. All monthly payments, principal prepayments and other amounts
received by Seller and not otherwise belonging to Seller pursuant to this
Agreement shall be sent by Seller within three (3) Business Days after Seller's
receipt thereof to the Servicer on behalf of the Purchaser.
Seller shall, under generally accepted accounting principles
("GAAP"), report its transfer of the Mortgage Loans to Purchaser, as provided
herein, as a sale of the Mortgage Loans to Purchaser in exchange for the
consideration specified in Section 2 hereof. In connection with the foregoing,
Seller shall cause all of its financial and accounting records to reflect such
transfer as a sale (as opposed to a secured loan). Seller shall at all times
following the Closing Date cause all of its records and financial statements and
any relevant consolidated financial statements of any direct or indirect parent
to clearly reflect that the Mortgage Loans have been transferred to Purchaser
and with the exception of the Retained Interest which has been retained by
Seller are no longer available to satisfy claims of Seller's creditors.
After Seller's transfer of the Mortgage Loans to Purchaser, as
provided herein, Seller shall not take any action inconsistent with Purchaser's
ownership (or the ownership by any of Purchaser's assignees) of the Mortgage
Loans. Except for actions that are the express responsibility of another party
hereunder or under the Servicing Agreement, and further except for actions that
Seller is expressly permitted to complete subsequent to the Closing Date, Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by Seller to Purchaser.
Section 4. Purchaser's Conditions to Closing. The obligations of
Purchaser to purchase the Mortgage Loans and pay the Mortgage Loan Purchase
Price at the Closing Date under the terms of this Agreement are subject to the
satisfaction of each of the following conditions at or before the Closing:
(a) Each of the obligations of Seller required to be performed by
it on or prior to the Closing Date pursuant to the terms of this Agreement shall
have been duly performed and complied with in all material respects; all of the
representations and warranties of Seller under this Agreement (subject to the
exceptions set forth in the Exception Report) shall be true and correct in all
material respects as of the Closing Date; no event shall have occurred with
respect to Seller or any of the Mortgage Loans and related Mortgage Files which,
with notice or the passage of time, would constitute a material default under
this Agreement; and Purchaser shall have received certificates to the foregoing
effect signed by authorized officers of Seller.
(b) Purchaser, or if directed by Purchaser, the Purchaser's
attorneys or other designee, shall have received in escrow, all of the following
closing documents, in such forms as are agreed upon and reasonably acceptable to
Purchaser and Seller, duly executed by all signatories other than Purchaser, as
required pursuant to the respective terms thereof:
(i) the Mortgage Files, subject to the provisos of
Section 1 of this Agreement, which shall have been delivered to and
held by the Purchaser or its designee on behalf of Seller;
(ii) the Mortgage Loan Schedule;
(iii) [Reserved]
(iv) an opinion or opinions of Seller's counsel, dated the
Closing Date, in form acceptable to the Purchaser as to various
corporate matters and such other matters as shall be reasonably
required by the Purchaser;
(v) a schedule of the balances of the escrow accounts and
the reserve accounts pertaining to the Mortgage Loans; and
(vi) all other information, documents, certificates, or
letters with respect to the Mortgage Loans or Seller and its
Affiliates as are reasonably requested by Purchaser in order for
Purchaser to perform any of it obligations or satisfy any of the
conditions on its part to be performed or satisfied pursuant to any
sale of Mortgage Loans by Purchaser as contemplated herein.
(c) Seller shall have performed or complied with all other terms
and conditions of this Agreement which it is required to perform or comply with
at or before the Closing and shall have the ability to perform or comply with
all duties, obligations, provisions and terms which it is required to perform or
comply with after the Closing.
Section 5. Seller's Conditions to Closing. The obligations of
Seller under this Agreement shall be subject to the satisfaction, on the Closing
Date, of the following conditions:
(a) Each of the obligations of Purchaser required to be performed
by it on or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with in all material respects; and
all of the representations and warranties of Purchaser under this Agreement
shall be true and correct in all material respects as of the Closing Date; and
no event shall have occurred with respect to Purchaser which, with notice or the
passage of time, would constitute a material default under this Agreement, and
Seller shall have received certificates to that effect signed by authorized
officers of Purchaser.
(b) Seller shall have received all of the following closing
documents, in such forms as are agreed upon and reasonably acceptable to Seller
and Purchaser, duly executed by all signatories other than Seller, as required
pursuant to the respective terms thereof:
(i) the Servicing Agreement;
(ii) an officer's certificate of Purchaser, dated as of the
Closing Date, with the resolutions of Purchaser authorizing the
transactions set forth therein, together with copies of the charter,
by-laws and certificate of good standing dated as of a recent date
of Purchaser; and
(iii) such other certificates of its officers or others, such
opinions of Purchaser's counsel and such other documents required to
evidence fulfillment of the conditions set forth in this Agreement
as Seller or its counsel may reasonably request.
(c) Purchaser shall have performed or complied with all other
terms and conditions of this Agreement which it is required to perform or comply
with at or before the Closing and shall have the ability to perform or comply
with all duties, obligations, provisions and terms which it is required to
perform or comply with after Closing.
Section 6. Representations and Warranties of Seller.
(a) Seller represents and warrants to Purchaser as of the date
hereof, as follows:
(i) Seller is duly organized and is validly existing as a
federally chartered corporation in good standing under the laws of
the United States of America. Seller has conducted and is conducting
its business so as to comply in all material respects with all
applicable statutes and regulations of regulatory bodies or agencies
having jurisdiction over it, except where the failure so to comply
would not have a materially adverse effect on the performance by
Seller of this Agreement, and there is no charge, action,
investigation, suit or proceeding before or by any court, regulatory
authority or governmental agency or body pending or, to the
knowledge of Seller, threatened, which is reasonably likely to
materially and adversely affect the performance by Seller of this
Agreement or the consummation of transactions contemplated by this
Agreement.
(ii) Seller has the full power, authority and legal right to
hold, transfer and convey the Mortgage Loans and to execute and
deliver this Agreement (and all agreements and documents executed
and delivered by Seller in connection herewith) and to perform all
transactions of Seller contemplated by this Agreement (and all
agreements and documents executed and delivered by Seller in
connection herewith). Seller has duly authorized the execution,
delivery and performance of this Agreement (and all agreements and
documents executed and delivered by Seller in connection herewith),
and has duly executed and delivered this Agreement (and all
agreements and documents executed and delivered by Seller in
connection herewith). This Agreement (and each agreement and
document executed and delivered by Seller in connection herewith),
assuming due authorization, execution and delivery thereof by each
other party thereto, constitutes the legal, valid and binding
obligation of Seller enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, fraudulent
transfer, insolvency, reorganization, receivership, moratorium or
other laws relating to or affecting the rights of creditors
generally, by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law)
and by considerations of public policy.
(iii) Neither the execution, delivery and performance of this
Agreement, nor the fulfillment of or compliance with the terms and
conditions of this Agreement by Seller, will (A) conflict with or
result in a breach of any of the terms, conditions or provisions of
Seller's articles or certificate of incorporation and bylaws or
similar type organizational documents, as applicable; (B) conflict
with, result in a breach of, or constitute a default or result in an
acceleration under, any agreement or instrument to which Seller is
now a party or by which it (or any of its properties) is bound if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (C)
conflict with or result in a breach of any legal restriction if
compliance therewith is necessary (1) to ensure the enforceability
of this Agreement or (2) for Seller to perform its duties and
obligations under this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith); (D) result
in the violation of any law, rule, regulation, order, judgment or
decree to which Seller or its property is subject if compliance
therewith is necessary (1) to ensure the enforceability of this
Agreement or (2) for Seller to perform its duties and obligations
under this Agreement (or any agreement or document executed and
delivered by Seller in connection herewith); or (E) result in the
creation or imposition of any lien, charge or encumbrance that would
have a material adverse effect upon Seller's ability to perform its
duties and obligations under this Agreement (or any agreement or
document executed and delivered by Seller in connection herewith),
or materially impair the ability of Purchaser to realize on the
Mortgage Loans.
(iv) Seller is solvent and the sale of the Mortgage Loans
(1) will not cause Seller to become insolvent and (2) is not
intended by Seller to hinder, delay or defraud any of its present or
future creditors. After giving effect to its transfer of the
Mortgage Loans, as provided herein, the value of Seller's assets,
either taken at their present fair saleable value or at fair
valuation, will exceed the amount of Seller's debts and obligations,
including contingent and unliquidated debts and obligations of
Seller, and Seller will not be left with unreasonably small assets
or capital with which to engage in and conduct its business. 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. No proceedings looking toward liquidation,
dissolution or bankruptcy of Seller are pending or contemplated.
(v) No consent, approval, authorization or order of, or
registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over
Seller is required for (A) Seller's execution, delivery and
performance of this Agreement (or any agreement or document executed
and delivered by Seller in connection herewith), (B) Seller's
transfer and assignment of the Mortgage Loans, or (C) the
consummation by Seller of the transactions contemplated by this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or, to the extent so required, such
consent, approval, authorization, order, registration, filing or
notice has been obtained, made or given (as applicable), except for
the filing or recording of assignments and other Mortgage Loan
Documents contemplated by the terms of this Agreement and except
that Seller may not be duly qualified to transact business as a
foreign corporation or licensed in one or more states if such
qualification or licensing is not necessary to ensure the
enforceability of this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(vi) In connection with its sale of the Mortgage Loans,
Seller is receiving new value. The consideration received by
Seller upon the sale of the Mortgage Loans constitutes at least fair
consideration and reasonably equivalent value for the Mortgage
Loans.
(vii) Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant of
Seller contained in this Agreement (or any agreement or document
executed and delivered by Seller in connection herewith).
(viii) There are no actions, suits or proceedings pending or,
to Seller's knowledge, threatened in writing against Seller which
are reasonably likely to draw into question the validity of this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith) or which, either in any one instance
or in the aggregate, are reasonably likely to materially impair the
ability of Seller to perform its duties and obligations under this
Agreement (or any agreement or document executed and delivered by
Seller in connection herewith).
(ix) Seller's performance of its duties and obligations
under this Agreement (and each agreement or document executed and
delivered by Seller in connection herewith) is in the ordinary
course of business of Seller and Seller's transfer, assignment and
conveyance of the Mortgage Loans pursuant to this Agreement are not
subject to the bulk transfer or similar statutory provisions in
effect in any applicable jurisdiction. The Mortgage Loans do not
constitute all or substantially all of Seller's assets.
(x) Seller has not dealt with any Person that may be
entitled, by reason of any act or omission of Seller, to any
commission or compensation in connection with the sale of the
Mortgage Loans to Purchaser hereunder except for the reimbursement
of expenses as described herein.
(xi) Seller is not in default or breach of any agreement or
instrument to which Seller is now a party or by which it (or any of
its properties) is bound which breach or default would materially
and adversely affect the ability of Seller to perform its
obligations under this Agreement.
(xii) The representations and warranties contained in Exhibit
A hereto, subject to the exceptions to such representations and
warranties set forth on Schedule V hereto, are true and correct in
all material respects as of the date hereof with respect to the
Mortgage Loans identified on Schedule II.
(xiii) The originals or copies of the Mortgage Loan Documents
required hereunder to be delivered to Purchaser as a part of the
Mortgage Files (including, without limitation, all letters of credit
and amendments thereto relating to the Mortgage Loans) on or before
the Closing Date and all statements, reports or other documents
prepared by unaffiliated third parties (e.g., environmental reports,
structural reports, appraisals, surveys and audited financial
statements) furnished by Seller to Purchaser with respect to the
Mortgage Loans prior to the Closing (each, a "Third Party Report")
are accurate and complete originals or copies thereof. To Seller's
best knowledge, no statement, report or other document (which is not
a Mortgage Loan Document or a Third Party Report) furnished to
Purchaser in writing on or before the Closing Date by or on behalf
of the Seller pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements contained therein (in light of the circumstances
under which such statements were made) not misleading. Seller has
delivered to Purchaser all material information in its possession
with respect to the Mortgage Loans and the Mortgaged Properties.
(b) Seller hereby agrees that it shall be deemed to make, as of
the date of substitution, to and for the benefit of the Purchaser or any
transferee to be replaced, with respect to any replacement mortgage loan (a
"Replacement Mortgage Loan") that is substituted for a Mortgage Loan affected by
a Material Defect or a Material Breach, pursuant to Section 7 of this Agreement,
each of the representations and warranties set forth in Exhibit A hereto
(references therein to "Closing Date" being deemed to be references to the "date
of substitution" and references therein to "Cut-off Date" being deemed to be
references to the "due date for the subject Replacement Mortgage Loan during the
month of substitution"). From and after the date of substitution, each
Replacement Mortgage Loan, if any, shall be deemed to constitute a "Mortgage
Loan" hereunder for all purposes.
If the Purchaser sells any of the Mortgage Loans in a Disposition
Transaction, the Seller further agrees to make on the Disposition Date (i) each
of the representations and warranties set forth in Exhibit A as of the date
specified in such representation and warranty or, if no such date is specified,
as of the Disposition Date (except that certain of such representations and
warranties, such as those relating to the Seller's ownership or transfer of the
Mortgage Loans on the Closing Date and the like, shall be made or confirmed to
be true as of the Closing Date), subject to the exceptions to such
representations and warranties set forth on Schedule V hereto and such
additional exceptions as may be appropriate based upon changes in factual
circumstances related to such Mortgage Loans between the date hereof and the
Disposition Date and (ii) representations and warranties pertaining to its
status as a federally chartered corporation, due authorization to make
representations and warranties and similar matters reasonably related to its
making of the representations and warranties described in clause (i) of this
Section 6(b).
Section 7. Obligations of Seller. Each of the representations and
warranties contained in or required to be made by Seller pursuant to Section 6
of this Agreement shall survive the sale of the Mortgage Loans and shall
continue in full force and effect, notwithstanding any restrictive or qualified
endorsement on the Notes and notwithstanding subsequent termination of this
Agreement. The representations and warranties contained in or required to be
made by Seller pursuant to Section 6 of this Agreement shall not be impaired by
any review or examination of the Mortgage Files or other documents evidencing or
relating to the Mortgage Loans or any failure on the part of Purchaser to review
or examine such documents, and such representations and warranties shall inure
to the benefit of any transferee or transferees of the Mortgage Loans from
Purchaser in connection with any Disposition Transaction, including, without
limitation, the depositor or trustee of Mortgage Loans being securitized in such
a Disposition Transaction, notwithstanding any restrictive or qualified
endorsement on any Note, assignment of Mortgage or reassignment of Assignment of
Leases.
If the Purchaser or the Servicer discovers or receives notice of a
breach of any of the representations or warranties made by the Seller with
respect to the Mortgage Loans (subject to the exceptions to such representations
and warranties set forth in the Exception Report) as set forth in Exhibit A
hereto, as of the date hereof in Section 6(a)(xii) (subject to the exceptions to
such representations and warranties set forth in the Exception Report), or in
the case of any Replacement Mortgage Loan, as of the date of substitution
pursuant to Section 6(b) (in any such case, a "Breach"), or receives notice that
(a) any document required to be included in the Mortgage File related to any
Mortgage Loan is not in the Purchaser's possession within the time period
required herein or (b) such document has not been properly executed or is
otherwise defective on its face (subsection (a) and (b) each, a "Defect"
(including the "Defects" detailed in the immediately following paragraph) in the
related Mortgage File), such party shall give notice to the other party and the
Seller. If the Purchaser determines that such Breach or Defect, as the case may
be, materially and adversely affects, or is deemed hereby to materially and
adversely affect, the value of any Mortgage Loan or the interests of the
Purchaser therein (in either case, a "Material Breach" or "Material Defect"), it
shall give prompt written notice of such Breach or Defect to the Seller and
shall request that the Seller not later than the earlier of 90 days from the
receipt by the Seller of such notice (subject to the second succeeding
paragraph, the "Initial Resolution Period"): (i) cure such Breach or Defect in
all material respects; (ii) repurchase the affected Mortgage Loan at the
applicable Repurchase Price or (iii) substitute one or more Qualified Substitute
Mortgage Loans for such affected Mortgage Loan (provided that in no event shall
any substitution occur later than the second anniversary of the later of the
Closing Date or, if applicable, the Disposition Date) and pay the Purchaser any
Substitution Shortfall Amount in connection therewith; provided, however, that
if (i) such Material Breach or Material Defect is capable of being cured but not
within the Initial Resolution Period, (ii) such Material Breach or Material
Defect does not cause the related Mortgage Loan not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3) of the Code), (iii) the Seller has
commenced and is diligently proceeding with the cure of such Material Breach or
Material Defect within the Initial Resolution Period and (iv) the Seller has
delivered to the Purchaser an officer's certificate that describes the reasons
that the cure was not effected within the Initial Resolution Period and the
actions that it proposes to take to effect the cure and that states that it
anticipates the cure will be effected within the additional 90-day period, then
the Seller shall have an additional 90 days to cure such Material Defect or
Material Breach. With respect to any substitution of one or more Qualified
Substitute Mortgage Loans for a Mortgage Loan hereunder, (A) no such
substitution may be made in any calendar month after the determination date
(under the applicable servicing agreement, if any) for such month; (B) scheduled
payments of principal and interest due with respect to the Qualified Substitute
Mortgage Loan(s) after the related date of substitution shall belong to the
Purchaser; and (C) scheduled payments of principal and interest due with respect
to such Qualified Substitute Mortgage Loan(s) on or prior to the related date of
substitution shall belong to the Seller, and the Seller shall be entitled to
receive such payments promptly following receipt by the Purchaser. If any Breach
pertains to a representation or warranty that the related Mortgage Loan
Documents or any particular Mortgage Loan Document requires the related Borrower
to bear the costs and expenses associated with any particular action or matter
under such Mortgage Loan Document(s), then Seller shall cure such Breach within
the Initial Resolution Period by reimbursing the Purchaser (by wire transfer of
immediately available funds) the reasonable amount of any such costs and
expenses incurred by any Servicer on the Purchaser's behalf that are the basis
of such Breach and have not been reimbursed by the related Borrower; provided,
however, that in the event any such costs and expenses exceed $10,000, Seller
shall have the option to either repurchase the related Mortgage Loan at the
applicable Repurchase Price or pay such costs and expenses. Except as provided
in the proviso to the immediately preceding sentence, Seller shall remit the
amount of such costs and expenses and upon its making such remittance, Seller
shall be deemed to have cured such Breach in all respects.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Material Defect": (a) the absence from the Mortgage File of
the original signed Note, unless the Mortgage File contains a signed lost note
affidavit and indemnity; (b) the absence from the Mortgage File of the original
signed Mortgage, unless there is included in the Mortgage File a certified copy
of the Mortgage as recorded or as sent for recordation, together with a
certificate stating that the original signed Mortgage was sent for recordation,
or a copy of the Mortgage and the related recording information; (c) the absence
from the Mortgage File of the item called for by clause (ix) of the last
sentence of the first paragraph of Section 3 hereof; (d) the absence from the
Mortgage File of any intervening assignments required to create an effective
assignment to the Purchaser, unless there is included in the Mortgage File a
certified copy of the intervening assignment as recorded or as sent for
recordation, together with a certificate stating that the original intervening
assignment was sent for recordation, or a copy of the intervening assignment and
the related recording information; or (e) the absence from the Servicer File of
any required original letter of credit, provided that such Defect may be cured
by any substitute letter of credit or cash reserve on behalf of the related
Borrower; or (f) the absence from the Mortgage File of the original or a copy of
any required ground lease.
Any Defect or Breach which causes any Mortgage Loan not to be a
"qualified mortgage" (within the meaning of Section 860G(a)(3) of the Code)
shall be deemed a "Material Defect" or "Material Breach," as applicable, and the
Initial Resolution Period for the affected Mortgage Loan shall be 90 days
following the earlier of Seller's receipt of notice pursuant to this Section 7
or its discovery of such Defect or Breach (which period shall not be subject to
extension).
If Seller does not, as required by this Section 7, correct or cure a
Material Breach or a Material Defect in all material respects within the
applicable Initial Resolution Period (as extended pursuant to this Section 7),
or if such Material Breach or Material Defect is not capable of being so
corrected or cured within such period, then Seller shall repurchase or
substitute for the affected Mortgage Loan as provided in this Section 7.
The Repurchase Price or Substitution Shortfall Amount for any
repurchased or substituted Mortgage Loan shall be payable to Purchaser by wire
transfer of immediately available funds to the account designated by Purchaser
and Purchaser, upon receipt of such funds (and, in the case of a substitution,
receipt of the Mortgage File(s) for the related Qualified Substitute Mortgage
Loans(s)), shall promptly release the related Mortgage File and Servicer File or
cause them to be released, to Seller and shall execute and deliver such
instruments of transfer or assignment as shall be necessary to vest in 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) and the related Mortgage Loan Documents.
It is understood and agreed that the obligations of Seller set forth
in this Section 7 constitute the sole remedies available to Purchaser and its
successors and assigns against Seller respecting any Breach or Defect affecting
a Mortgage Loan.
Section 8. Cooperation in Disposition Transactions. Barring the
occurrence of the following events, the Purchaser intends to securitize the
Mortgage Loans in the Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates, Series 2005-C5: (x) market
disruption, (y) the removal of a Mortgage Loan from the securitization pool by a
Rating Agency or (z) the removal of a Mortgage Loan from the securitization pool
by Cadim TACH, Inc., or its affiliates. As necessary in connection with the
closing of the Disposition Transaction the Servicer affirms that it will (a)
supply such information, opinions of counsel, letters from law and/or accounting
firms and other documentation, acknowledgements, confirmations, powers of
attorney and certificates as Purchaser, or its affiliates, shall reasonably
request to effect the Disposition Transaction (including any such requests that
arise from requirements imposed by any Rating Agency or by Cadim TACH, Inc., or
its affiliates), and enter into such indemnification agreements relating to or
in connection with the Disposition Transaction as Purchaser, or its affiliates,
may reasonably require and (b) make itself available for and engage in good
faith consultation with the participants concerning information to be contained
in any document, agreement, prospectus supplement, offering circular, private
placement memorandum or filing with the Securities and Exchange Commission in
connection with the Disposition Transaction, in each case relating to the Seller
or such Mortgage Loans, and will use reasonable efforts to compile any
information and prepare any reports and certificates, into a form, whether
written or electronic, suitable for inclusion in such documentation.
Section 9. Servicing; Retained Interest.
(a) Servicing. The Mortgage Loans are being sold to Purchaser,
subject to the continued servicing of the Mortgage Loans by Servicer, and shall
be serviced by Servicer pursuant to the Servicing Agreement.
(b) Retained Interest. (i) The sale of the Mortgage Loans to
Purchaser expressly excludes the Retained Interest with respect to each Mortgage
Loan, which, subject to the right of Seller to assign the same, is and shall
remain the property of Seller. The Retained Interest shall be 10 basis points of
each Mortgage Loan and the Retained Interest with respect to each Mortgage Loan
shall be payable monthly, on or prior to the 15th day of each month, in an
amount equal to one-twelfth of the product obtained by multiplying the
outstanding principal balance of the Mortgage Loan (determined as of the last
day of the month preceding the month in which such Retained Interest is payable)
by the Retained Rate. The Retained Interest shall be payable out of the interest
portion (including recoveries with respect to interest from liquidation
proceeds, insurance proceeds, condemnation proceeds or REO proceeds) of the
related monthly payment paid by the Borrower. If, in any month, a Borrower shall
make a payment in an amount less than the full amount of the monthly payment due
in such month, then Seller shall be entitled to receive a pro rata portion of
the Retained Interest attributable to such month based upon the portion of the
interest payment actually paid by the Borrower with respect to such calendar
month, subject to Seller's right to receive any shortfall out of any future
payments made on such Mortgage Loan. For purposes of making any determination
pursuant to the preceding sentence, amounts paid by a Borrower shall be deemed
to be applied first in payment of the interest portion of any monthly payment
prior to being applied against the principal portion of such monthly payment;
provided, however, that all liquidation proceeds shall be deemed to be applied
first in payment of the outstanding principal balance of the Mortgage Loan prior
to being applied to accrued and unpaid interest on the Mortgage Loan. The method
of payment of the Retained Interest is more particularly described in the
Servicing Agreement.
(ii) The Purchaser hereby acknowledges that any termination
of Servicer as Servicer under the Servicing Agreement shall not
affect the right of Seller to continue to receive the Retained
Interest. In the event of any such termination, the Retained
Interest shall continue to be paid to Seller, on a monthly basis,
out of the Monthly Payments paid by each Borrower with respect to
its respective Mortgage Loan. In the event that Servicer is no
longer acting as Servicer of the Mortgage Loans, Purchaser shall
promptly enter into one or more new servicing agreement(s) with
respect to the Mortgage Loans which agreement(s) shall obligate such
servicer to remit the Retained Interest to Seller in accordance with
the terms of this Agreement pursuant to provisions which are
substantively equivalent to those contained within the Servicing
Agreement relative to the Retained Interest and otherwise in form
and substance reasonably satisfactory to Seller.
Any transfer of any Mortgage Loan, whether immediate or
remote, including, without limitation, any transfer in connection with a
Securitization of the Mortgage Loans, shall be made expressly subject to
Seller's right to continue to receive the Retained Interest and Purchaser
shall cause any instrument or agreement of transfer to expressly provide
that the transfer of the Mortgage Loans and any subsequent transfer of the
Mortgage Loans is subject in all respect to Seller's and any successor to
Seller's right to receive the Retained Interest. Upon securitization,
Purchaser shall cause the delivery of the Class A-Y Certificate to Seller.
The Class A-Y Certificate shall have the same payments, priorities, and
allocations as was previously given to such class in the pooling and
servicing agreement related to Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2005-C3, including but not limited to a strip rate of 0.10% plus the
portion of the yield maintenance charge allocated to the Class A-Y
Certificates and 50% of all prepayment premiums with respect to the
Mortgage Loans. Seller's rights to receive Retained Interest terminates
upon receipt of the Class A-Y Certificates.
Section 10. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller as of the date hereof, as follows:
(a) Purchaser is duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own its assets and conduct its business as it
is conducted, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification (except where the failure to qualify
would not have a materially adverse effect on the consummation of any
transactions contemplated by this Agreement).
(b) The execution and delivery by Purchaser of this Agreement and
the performance of Purchaser's obligations hereunder are within the corporate
power of Purchaser and have been duly authorized by Purchaser and neither the
execution and delivery by Purchaser of this Agreement nor the compliance by
Purchaser with the provisions hereof, nor the consummation by Purchaser of the
transactions contemplated by this Agreement, will (i) conflict with or result in
a breach of, or constitute a default under, the certificate of incorporation or
by-laws of Purchaser or, after giving effect to the consents or taking of the
actions contemplated by clause (ii) of this paragraph (b), any of the provisions
of any law, governmental rule, regulation, judgment, decree or order binding on
Purchaser or its properties, or any of the provisions of any material indenture
or mortgage or any other material contract or other instrument to which
Purchaser is a party or by which it is bound or result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, contract or other
instrument or (ii) require any consent of, notice to, or filing with any person,
entity or governmental body, which has not been obtained or made by Purchaser,
except where, in any of the instances contemplated by clause (i) above or this
clause (ii), the failure to do so will not have a material and adverse effect on
the consummation of any transactions contemplated by this Agreement.
(c) This Agreement has been duly executed and delivered by
Purchaser and this Agreement constitutes a legal, valid and binding instrument,
enforceable against Purchaser in accordance with its terms, subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally and to
general principles of equity and the discretion of the court (regardless of
whether enforcement of such remedies is considered in a proceeding in equity or
at law) and, as to rights of indemnification hereunder, subject to limitations
of public policy under applicable securities laws.
(d) There is no litigation, charge, investigation, action, suit or
proceeding by or before any court, regulatory authority or governmental agency
or body pending or, to the knowledge of Purchaser, threatened against Purchaser
the outcome of which could be reasonably expected to materially and adversely
affect the consummation of any transactions contemplated by this Agreement.
Section 11. Survival of Certain Representations, Warranties and
Covenants. The respective representations and warranties set forth in or made
pursuant to this Agreement, and the respective obligations of the parties hereto
under Sections 7 of this Agreement, will remain in full force and effect,
regardless of any investigation or statement as to the result thereof made by or
on behalf of any party and will survive payment for the various transfers
referred to herein or termination of this Agreement.
Section 12. Transaction Expenses. In connection with the Closing
(and unless otherwise expressly provided herein, including, without limitation,
in Section 13 of this Agreement), Seller shall be responsible for the fees and
expenses of its own counsel and Purchaser shall be responsible for the fees and
expenses of its own counsel and all other transaction expenses shall be paid by
the party incurring the subject expense).
Section 13. Recording Costs and Expenses. Seller agrees to
reimburse the Purchaser or its designee for all recording and filing fees and
expenses incurred by the Purchaser or its designee in connection with the
recording or filing of the Mortgage Loan Documents listed in Section 3 of this
Agreement, including Assignments. In the event Seller elects to engage a
third-party contractor to prepare, complete, file and record Assignments with
respect to Mortgage Loans as provided in Section 3 of this Agreement, Seller
shall contract directly with such contractor and shall be responsible for such
contractor's compensation and reimbursement of recording and filing fees and
other reimbursable expenses pursuant to their agreement.
Section 14. Notices. All demands, notices and communications
hereunder shall be in writing and effective only upon receipt, and, (a) if sent
to Purchaser, will be mailed, delivered or telecopied and confirmed to it at
Column Financial, Inc., 00 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxx Xxxxxx, Telecopy No.: (000) 000-0000 (with a copy to Xxxxx
XxXxxxxxxx, Esq., Legal & Compliance Department, Telecopy No.: (000) 000-0000),
or such other address or telecopy number as may be designated by Purchaser to
Seller in writing, or (b) if sent to Seller, will be mailed, delivered or
telecopied and confirmed to it at 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxxxx Xxxxx, Telecopy No.: (000) 000-0000, or such other address
or telecopy number as may be designated by Seller to Purchaser in writing.
Section 15. Examination of Mortgage Files. Upon reasonable notice,
Seller, prior to the Closing Date, will make the Mortgage Files available to
Purchaser or its agent for examination during normal business hours at Seller's
offices or such other location as shall otherwise be agreed upon by Purchaser
and Seller. The fact that Purchaser or its agent has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files shall not
affect the rights of Purchaser to demand cure, repurchase, or other relief as
provided herein.
Section 16. Successors. This Agreement shall inure to the benefit
of and shall be binding upon Seller and Purchaser and their respective
successors and permitted assigns, and nothing expressed in this Agreement is
intended or shall be construed to give any other Person any legal or equitable
right, remedy or claim under or in respect of this Agreement, or any provisions
herein contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such designated
Persons and for the benefit of no other Person; it being understood that the
rights of Purchaser pursuant to this Agreement, subject to all limitations
herein contained, including those set forth in Section 7 of this Agreement, may
be assigned to a transferee or transferees of one or more Mortgage Loans in
connection with a Disposition Transaction, including, without limitation, a
depositor or trustee under a pooling and servicing agreement in connection with
a Disposition Transaction which is a securitization of mortgage loans, provided
that upon such assignment, such transferee or transferees shall succeed to such
rights of the Purchaser hereunder; provided that such transferee(s) shall have
no right to further assign such rights to any other person. No owner of a
certificate or other security issued in connection with such a Disposition
Transaction shall be deemed a successor or assign because of such ownership.
Section 17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS TO BE MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT GIVING
EFFECT TO CHOICE OF LAW PRINCIPLES.
Section 18. Severability. If any provision of this Agreement shall
be prohibited or invalid under applicable law, this Agreement shall be
ineffective only to such extent, without invalidating the remainder of this
Agreement.
Section 19. Further Assurances. Purchaser and Seller agree to
execute and deliver such instruments and take such actions as the other party
may, from time to time, reasonably request in order to effectuate the purpose
and to carry out the terms of this Agreement.
Section 20. Counterparts. This Agreement may be executed in
counterparts (and by each of the parties hereto on different counterparts), each
of which when so executed and delivered will be an original, and all of which
together will be deemed to constitute but one and the same instrument.
Section 21. Treatment as Security Agreement. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by Seller
to Purchaser as provided in this Agreement be, and be construed as, a sale of
the Mortgage Loans by Seller to Purchaser. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Mortgage Loans by
Seller to Purchaser to secure a debt or other obligation of Seller. However, in
the event that, notwithstanding the intent of the parties, the Mortgage Loans
are held to be property of Seller or if for any reason this Agreement is held or
deemed to create a security interest in the Mortgage Loans:
(a) this Agreement shall hereby create a security agreement within
the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the
applicable state;
(b) the conveyance provided for in this Agreement shall hereby
grant from Seller to Purchaser a security interest in and to all of Seller's
right, title, and interest, whether now owned or hereafter acquired, in and to:
(i) all accounts, contract rights (including any
guarantees), general intangibles, chattel paper, instruments,
documents, money, deposit accounts, certificates of deposit, goods,
letters of credit, advices of credit and investment property
consisting of, arising from or relating to any of the property
described in the Mortgage Loans, including the related Notes,
Mortgages and title, hazard and other insurance policies, identified
on the Mortgage Loan Schedule or that constitute Replacement
Mortgage Loans, and all distributions with respect thereto payable
after the Cut-off Date;
(ii) all accounts, contract rights, general intangibles,
chattel paper, instruments, documents, money, deposit accounts,
certificates of deposit, goods, letters of credit, advices of credit
and investment property arising from or by virtue of the disposition
of, or collections with respect to, or insurance proceeds payable
with respect to, or claims against other persons with respect to,
all or any part of the collateral described in clause (i) above
(including any accrued discount realized on liquidation of any
investment purchased at a discount), in each case, payable after the
Cut-off Date; and
(iii) all cash and non-cash proceeds of the collateral
described in clauses (i) and (ii) above payable after the Cut-off
Date;
(c) the possession by Purchaser or its assignee of the Notes and
such other goods, letters of credit, advices of credit, instruments, money,
documents, chattel paper or certificated securities shall be deemed to be
possession by the secured party or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code (including, without limitation, Sections
9-306, 9-313 and 9-314 thereof) as in force in the relevant jurisdiction;
(d) notifications to persons holding such property, and
acknowledgments, receipts, confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, securities intermediaries, bailees or agents of, or persons
holding for (as applicable), Purchaser or its assignee for the purpose of
perfecting such security interest under applicable law; and
(e) Seller at the direction of Purchaser or its assignee, 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 and the proceeds thereof, such security interest
would be a perfected security interest of first priority under applicable law
and will be maintained as such throughout the term of this Agreement. In
connection herewith, Purchaser and its assignee shall have all of the rights and
remedies of a secured party and creditor under the Uniform Commercial Code as in
force in the relevant jurisdiction and may prepare and file such UCC financing
statements as may be necessary or appropriate to accomplish the foregoing.
Section 22. Recordation of Agreement. To the extent permitted by
applicable law, this Agreement is subject to recordation following the Closing
Date in all appropriate public offices for real property records in all the
counties or other comparable jurisdictions in which any or all of the properties
subject to the Mortgages are situated, and in any other appropriate public
recording office or elsewhere, such recordation to be effected by Seller at
Seller's expense at the direction of Purchaser accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of Purchaser.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage
Loan Purchase Agreement to be duly executed and delivered as of the date first
above written.
National Consumer Cooperative Bank,
as Seller
By:____________________________________
Name:
Title:
COLUMN FINANCIAL, INC.,
as Purchaser
By:____________________________________
Name:
Title:
SCHEDULE I
SCHEDULE OF TRANSACTION TERMS
This Schedule of Transaction Terms is appended to and incorporated
by reference in the Mortgage Loan Purchase Agreement (the "Agreement"), dated as
of September 30, 2005, between National Consumer Cooperative Bank and Column
Financial, Inc. Capitalized terms used herein without definition have the
meanings given them in or by reference in the Agreement.
"Affiliate" means with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person.
"Assignment of Leases" means with respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar instrument, executed by
the related Borrower, assigning to the related mortgagee all of the income,
rents and profits derived from the ownership, operation, leasing or disposition
of all or a portion of such Mortgaged Property, together with any rider,
addendum or amendment thereto.
"Assignments" shall have the meaning given such term in Section 3 of
this Agreement.
"Borrower" means the borrower under a Mortgage Loan.
"Breach" shall have the meaning given such term in Section 7 of this
Agreement.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the states where the Seller or the
Purchaser (including a trustee acquiring Mortgage Loans in connection with a
Disposition Transaction) are located are authorized or obligated by law or
executive order to remain closed.
"Closing" shall have the meaning given that term in Section 2 of
this Agreement.
"Closing Date" means September 30, 2005.
"Closing Statement" means the closing statement dated as of the
Closing Date and signed by, among others, the parties to this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Cut-off Date" means, individually and collectively, the applicable
Due Dates for the respective Mortgage Loans occurring in September 2005 .
"Debt Service Coverage Ratio" means, with respect to any Mortgage
Loan, as of any date of determination, the ratio of (1) the Projected Net Cash
Flow for the related Mortgaged Property on an annualized basis to (2) the
annualized amount of debt service payable on that Mortgage Loan.
"Defect" shall have the meaning given such term in Section 7 of this
Agreement.
"Environmental Report" means the environmental audit report with
respect to each Mortgaged Property delivered to Seller in connection with the
related Mortgage, if any.
"Exception Report" means the exceptions with respect to the
representations and warranties made by Seller as to the Mortgage Loans in
Section 6(a)(xii) of this Agreement, which exceptions are set forth in Schedule
V attached hereto and made a part hereof.
"Initial Resolution Period" shall have the meaning given such term
in Section 7 of this Agreement.
"Loan Agreement" means, with respect to any Mortgage Loan, the loan
agreement, if any, between the related Mortgage Loan Originator and the related
Borrower, pursuant to which such Mortgage Loan was made.
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan, as
of any date of determination, the fraction, expressed as a percentage, the
numerator of which is the principal balance of such Mortgage Loan at the time of
determination, and the denominator of which is the appraised value of the
related Mortgaged Property determined as a cooperatively-owned multifamily
residential building.
"Material Breach" shall have the meaning given such term in Section
7 of this Agreement.
"Material Defect" shall have the meaning given such term in Section
7 of this Agreement.
"Mortgage File" means, collectively, the documents and instruments
pertaining to a Mortgage Loan required to be included in the related Mortgage
File pursuant to Section 3 of this Agreement (subject to the first proviso in
Section 1 of this Agreement).
"Mortgage Interest Rate" means, with respect to each Mortgage Loan,
the per annum rate of interest at which interest accrues on the outstanding
principal balance of such Mortgage Loan in accordance with the terms of the
related Mortgage Note.
"Mortgage Loan" and "Mortgage Loans" shall have the respective
meanings given such terms in Recital II of this Agreement.
"Mortgage Loan Documents" means, collectively, the documents and
instruments pertaining to a Mortgage Loan to be included in either the related
Mortgage File or the related Servicer File.
"Mortgage Loan Originator" means any institution which originated a
Mortgage Loan for a related Borrower.
"Mortgage Loan Purchase Price" means the amount described in Section
2 of this Agreement.
"Mortgage Loan Schedule" shall have the meaning given such term in
Recital II of this Agreement.
"Mortgaged Property" means the underlying real property that secures
a Mortgage Loan, in each case consisting of a parcel or parcels of land improved
by a commercial and/or multi-family building or facility, together with any
personal property (to the extent the same are owned by the Borrower and
necessary in connection with the operation of the related property), fixtures,
leases and other property or rights pertaining thereto.
"Net Mortgage Rate" means with respect to any Mortgage Loan as of
any date of determination, a per annum rate equal to the related Mortgage
Interest Rate minus the related Servicing Fee Rate and the Retained Rate.
"Note" means the original executed promissory note evidencing the
indebtedness of Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Projected Net Cash Flow" means, with respect to each Mortgaged
Property the projected net operating income at such Mortgaged Property, as set
forth in the appraisal obtained with respect to such Mortgaged Property in
connection with the origination of the related Mortgage Loan, assuming such
Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market-rate vacancy assumption and
projected reserves.
"Purchaser" shall have the meaning given such term in the first
sentence of this Agreement.
"Qualified Substitute Mortgage Loan" means a mortgage loan which
must, on the date of substitution: (i) have an outstanding principal balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the due date in the calendar month
during which the substitution occurs; (ii) have a mortgage interest rate (in
absence of a default) not less than the mortgage interest rate of the deleted
Mortgage Loan; (iii) have the same due date as the deleted Mortgage Loan; (iv)
accrue interest on the same basis as the deleted Mortgage Loan (for example, on
the basis of a 360-day year and the actual number of days elapsed); (v) have a
remaining term to stated maturity not greater than, and not more than two (2)
years less than, the remaining term to stated maturity of the deleted Mortgage
Loan; (vi) have an original Loan-to-Value Ratio not higher than that of the
deleted Mortgage Loan and a current Loan-to-Value Ratio not higher than the
current Loan-to-Value Ratio of the deleted Mortgage Loan; (vii) materially
comply as of the date of substitution with all of the representations and
warranties set forth in Exhibit A hereto; (viii) have an Environmental Report
with respect to the related Mortgaged Property that indicates no material
adverse environmental conditions and which will be delivered as a part of the
related Mortgage File; (ix) have an original Debt Service Coverage Ratio of not
less than the greater of the original Debt Service Coverage Ratio and the
current Debt Service Coverage Ratio of the deleted Mortgage Loan; (x) be
determined by an opinion of counsel (at the Seller's expense) to be a "qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of the Code; (xi)
not have a maturity date after the date two (2) years prior to any rated final
distribution date under a related pooling and servicing agreement, if any; (xii)
not be substituted for a deleted Mortgage Loan unless the trustee under a
pooling and servicing agreement or other person acquiring such mortgage loan has
received prior confirmation in writing from each rating agency that has rated
any certificates or other securities representing beneficial interests in the
deleted Mortgage Loan, if any, that such substitution will not result in the
withdrawal, downgrade or qualification of the rating assigned by such rating
agency to any class of certificates or securities then rated by such rating
agency (the cost, if any, of obtaining such confirmation to be paid by the
Seller); (xiii) have been approved by the directing certificate holder or
similar person, if any, in its sole discretion; (xiv) prohibit defeasance within
three (3) years after the Closing Date (or if Purchaser transfers the deleted
Mortgage Loan in a securitization transaction, within two (2) years after the
closing date of such transaction); and (xv) not be substituted for a deleted
Mortgage Loan if it would result in the termination of the REMIC status of any
REMIC established in connection with any Disposition Transaction or the
imposition of a tax on any such REMIC other than a tax on income expressly
permitted or contemplated to be received under the terms of such Disposition
Transaction, as determined by an opinion of counsel. In the event that one or
more mortgage loans are to be substituted for one or more deleted Mortgage
Loans, then the amounts described in clause (i) shall be determined on the basis
of aggregate principal balances and the interest rates described in clause (ii)
above and the remaining term to stated maturity referred to in clause (v) above
shall be determined on a weighted average basis. When a Qualified Substitute
Mortgage Loan is substituted for a deleted Mortgage Loan, the Seller shall
certify that the Qualified Substitute Mortgage Loan meets all of the
requirements of the above definition and shall send such certification to the
Purchaser. In the event that the deleted Mortgage Loan has been transferred by
Purchaser in a securitization, any Qualified Substitute Mortgage Loan must also
meet any additional requirements of the pooling and servicing agreement or
similar securitization documents.
"REMIC" means a "real estate mortgage investment conduit" as defined
in Section 860D of the Code (or any successor thereto).
"Repurchase Price" means with respect to any Mortgage Loan to be
purchased or replaced by the Seller pursuant to Section 7 of this Agreement, a
price equal to the sum of (i) the outstanding principal balance of such Mortgage
Loan as of the date of purchase; (ii) all accrued and unpaid interest on such
Mortgage Loan at the related annual rate at which interest is scheduled (in
absence of a default and without giving effect to any revised rate) to accrue on
such Mortgage Loan from time to time prior to maturity to, but not including,
the due date in the month of purchase (which includes unpaid master servicing
fees and primary servicing fees, if applicable) plus all related special
servicing fees, if applicable; (iii) all unreimbursed property protection or
servicing advances related to such Mortgage Loan (or such advances reimbursed by
the trust if such Mortgage Loan is held in trust under a pooling and servicing
agreement) plus accrued and unpaid interest on any related advances (including
advances for principal and/or interest) at any applicable advance interest rate;
(iv) if such Mortgage Loan is being repurchased by the Seller following the
expiration of the applicable cure period (as it may be extended), the amount of
any liquidation fees payable to the special servicer, if applicable; and (v) all
reasonable out-of-pocket expenses reasonably incurred or to be incurred by the
Purchaser, a servicer or other person in respect of the Material Breach or
Material Defect giving rise to the repurchase obligation, including any expenses
arising out of the enforcement of the repurchase obligation and, if such
Mortgage Loan is held in trust under a pooling and servicing agreement, any
unpaid or unreimbursed additional trust fund expenses, if any, allocable to such
Mortgage Loan, determined as of the date of repurchase or substitution, as the
case may be.
"Retained Interest" means with respect to each Mortgage Loan, (x) a
portion of the interest portion (including recoveries with respect to interest
from liquidation proceeds, insurance proceeds, condemnation proceeds or REO
proceeds) of each monthly payment on such Mortgage Loan calculated as provided
in Section 9(b) of this Agreement; (y) the Seller's Yield Maintenance Charge
with respect to the Mortgage Loans and (z) 50% of all prepayment premiums with
respect to the Mortgage Loans.
"Retained Rate" means with respect to each Mortgage Loan, a rate per
annum equal to either: (1) if such Mortgage Loan accrues interest on a 30/360
Basis, 10 basis points; and (2) if such Mortgage Loan accrues interest on an
Actual/360 Basis, the product of (a) 10 basis points, multiplied by (b) a
fraction, the numerator of which is the number of days in the interest accrual
period that corresponds to such distribution date, and the denominator of which
30.
"Seller" shall have the meaning given such term in the first
sentence of this Agreement.
"Seller's Yield Maintenance Charge" means, with respect to any
Mortgage Loan, a portion of any yield maintenance charge equal to the excess of
(i) the yield maintenance charge actually payable with respect to the Mortgage
Loan in question, over (ii) the amount that would have been payable as yield
maintenance charge with respect to such Mortgage Loan had the Mortgage Interest
Rate been equal to the Net Mortgage Rate.
"Servicer" means NCB, FSB acting in its capacity as servicer of the
Mortgage Loans on behalf of the Purchaser under the terms of the Servicing
Agreement.
"Servicer File" means, collectively, all documents, records and
copies pertaining to a Mortgage Loan which are required to be included in the
related Servicer File pursuant to Section 3 (subject to the first proviso in
Section 1).
"Servicing Agreement" means that certain agreement dated as of the
Closing Date between the Purchaser and the Servicer which sets forth the terms
upon which the Servicer will service the Mortgage Loans on behalf of the
Purchaser commencing with the Closing and related matters, including the
retained servicing rights of the Servicer.
"Servicing Fee Rate" means with respect to each Mortgage Loan, 8
basis points attributed to the Mortgage Loan.
"Stated Principal Balance" means with respect to any Mortgage Loan,
as of any date of determination, an amount equal to the unpaid principal balance
thereof as of the Cut-off Date minus the sum of: (i) any payments or other
collections (or advances in lieu thereof) of principal on such Mortgage Loan
that have been distributed to the owner or owners of such Mortgage Loan (which
may include certificate holders) on or before such date of determination, and,
(ii) the principal portion of any realized loss recognized under the applicable
servicing agreement, if any, incurred in respect of or allocable to such
Mortgage Loan during the related collection period under such servicing
agreement. "Stated Principal Balance" means with respect to any Qualified
Substitute Mortgage Loan, an amount equal to the unpaid principal balance
thereof as of the date of substitution minus any scheduled payment of principal
due on or prior to the date of substitution.
"Substitution Shortfall Amount" means with respect to any
substitution of a Qualified Substitute Mortgage Loan or Loans for a Mortgage
Loan or Loans pursuant to Section 7 of this Agreement, the amount, if any, by
which the Repurchase Price or Prices of the deleted Mortgage Loan or Loans as of
the date of substitution exceeds the Stated Principal Balance or Balances of the
Qualified Substitute Mortgage Loan or Loans as of the date of substitution.
SCHEDULE II
MORTGAGE LOAN SCHEDULE
[see attached]
Zip
# Property Name Xxxxxxx Xxxx Xxxxxx Xxxxx Xxxx
----------------------------------------------------------------------------------------------------------------------------
0 Xxxxx Xxxxxxx Corp. 1270 & 0000 Xxxx 00xx Xxxxxx, 0000 & 0000
Xxxx 00xx Xxxxxx and 0000 Xxxx 00xx Xxxxxx Xxxxxxxx Xxxxx XX 00000
Net
Mortgage Mortgage Original Cut-off Remaining Maturity
# Rate Rate Balance Balance Term Date ARD Date
--------------------------------------------------------------------------------------------------------------------------
1
5.550% 5.469% $29,000,000.00 $28,972,949.09 178 7/1/2020 N/A
Original Master
Amort. Remaining Monthly Units/ Interest Servicing Due
# Term Amortization Payment Rooms/Beds Calculation Fee Rate Date
-----------------------------------------------------------------------------------------------------------------------------
1
480 478 $152,089.05 787 Actual/360 0.0800 1
ARD Earthquake Environmental
# Loan (Y/N) Lockout/Defeasance (Y/N) Insurance (Y/N) Insurance (Y/N) Ground Lease
-----------------------------------------------------------------------------------------------------------------
1
No Yes N/A No No
# Letter of Credit Amount (Y/N)
------------------------------------------
1
No
SCHEDULE III
[RESERVED]
SCHEDULE IV
MORTGAGE LOANS WITH LOST NOTES
None
SCHEDULE V
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES REGARDING
INDIVIDUAL MORTGAGE LOANS
Rep No. Mortgage Loan (Borrower) Explanation
------- ------------------------ ------------------------------------
xxxvi Kings Village Corp. The property is encumbered by a
subordinate mortgage held by
National Consumer Cooperative Bank
in the amount of $3,000,000.00.
xxxviii Kings Village Corp. The Borrower on Kings Village Corp.
Loan is permitted to incur
contractual liability in certain
limited amounts as more
particularly set forth in the
applicable Mortgage.
EXHIBIT A
REPRESENTATIONS AND WARRANTIES
REGARDING THE MORTGAGE LOANS
For purposes of these representations and warranties, the phrase "to
the knowledge of Seller" or "to Seller's knowledge" shall mean, except where
otherwise expressly set forth below, the actual state of knowledge of Seller or
any servicer acting on its behalf regarding the matters referred to, in each
case without having conducted any independent inquiry or due diligence with
respect to such matters and without any actual or implied obligation to make
such inquiry or perform such due diligence, other than making such inquiry or
performing such due diligence as would be customarily performed by prudent
commercial or multifamily mortgage lenders or servicers (as the case may be)
with respect to similar mortgage loans or mortgaged properties. All information
contained in documents which are part of or required to be part of a Mortgage
File shall be deemed to be within the knowledge of Seller. Wherever there is a
reference to receipt by, or possession of, Seller of any information or
documents, or to any action taken by Seller or not taken by Seller, such
reference shall include the receipt or possession of such information or
documents by, or the taking of such action or the not taking of such action by,
either Seller or any servicer acting on its behalf.
Except as disclosed in the Exception Report to this Agreement:
(i) Immediately prior to the sale, transfer and assignment to
the Purchaser, no Note or Mortgage was subject to any assignment (other than
assignments which show a complete chain of assignment to the Seller),
participation or pledge, and the Seller had good and marketable title to, and
was the sole owner of, the related Mortgage Loan;
(ii) Each Mortgage Loan was either:
(A) originated by a savings and loan association, savings bank,
commercial bank, credit union, or insurance company, which
is supervised and examined by a Federal or State authority,
or by a mortgagee approved by the Secretary of Housing and
Urban Development pursuant to Sections 203 and 211 of the
National Housing Act (any of the foregoing, including
Seller, a "Qualified Originator"); or
(B) if originated by a person which is not a Qualified
Originator (any such person, a "Non-Qualified Originator"),
then:
1. such Mortgage Loan was underwritten in accordance with
standards established by a Qualified Originator, using
application forms and related credit documents approved
by the Qualified Originator;
2. the Qualified Originator approved each application
and related credit documents before a commitment by the
Non-Qualified Originator was issued, and no such
commitment was issued until the Qualified Originator
agreed to fund such Mortgage Loan;
3. the Mortgage Loan was originated by the
Non-Qualified Originator pursuant to an ongoing,
standing relationship with the Qualified Originator;
and
4. the closing documents for the Mortgage Loan were
prepared on forms approved by the Qualified Originator,
and, pursuant to the Non-Qualified Originator's
ongoing, standing relationship with the Qualified
Originator, either:
(x) such closing documents reflect the Qualified
Originator as the original mortgagee, and such
Mortgage Loan was actually funded by the Qualified
Originator at the closing thereof;
(y) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Non-Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator; or
(z) such closing documents reflect the Non-Qualified
Originator as the original mortgagee, but include
assignment documents executed by the Non-Qualified
Originator in favor of the Qualified Originator at
the time of the closing of the Mortgage Loan,
reflecting the Qualified Originator as the
successor and assign to the Non-Qualified
Originator, and the Mortgage Loan was funded
initially by the Qualified Originator at the
closing thereof and then acquired by the Qualified
Originator from such Non-Qualified Originator.
(iii) The Seller has full right and authority to sell, assign and
transfer such Mortgage Loan and the assignment to the
Purchaser constitutes a legal, valid and binding assignment
of such Mortgage Loan;
(iv) The Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or any other
interests or security interests of any nature encumbering
such Mortgage Loan, except for the Retained Interest;
(v) As of origination, to Seller's knowledge, based on the
related Borrower's representations and covenants in the
related Mortgage Loan Documents and such other due
diligence as a reasonably prudent commercial mortgage
lender would deem appropriate, the Borrower, lessee and/or
operator was in possession of all licenses, permits, and
authorizations then required for use of the Mortgaged
Property which were valid and in full force and effect as
of the origination date and to Seller's actual knowledge,
such licenses, permits and authorizations are still valid
and in full force and effect;
(vi) Each related Note, Mortgage, Assignment of Leases (if any)
and other agreement executed by or for the benefit of the
related Borrower, any guarantor or their successors or
assigns in connection with such Mortgage Loan is the legal,
valid and binding obligation of the related Borrower,
enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and there
is no right of offset, rescission, abatement or diminution
or valid defense or counterclaim available to the related
Borrower with respect to such Note, Mortgage, Assignment of
Leases and other agreements, except as the enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vii) The Mortgage File contains an Assignment of Leases, either
as a separate instrument or incorporated into the related
Mortgage. Each related Assignment of Leases creates a valid
first priority collateral assignment of, or a valid first
priority lien or security interest in, certain rights under
the related lease or leases, subject only to a license
granted to the related Borrower to exercise certain rights
and to perform certain obligations of the lessor under such
lease or leases, including the right to operate the related
leased property, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of
creditors' rights or by general principles of equity
(regardless of whether such enforceability is considered in
a proceeding in equity or at law); no person other than the
related Borrower owns any interest in any payments due
under such lease or leases that is superior to or of equal
priority with the lender's interest therein;
(viii) Each related assignment of Mortgage from the Seller to
the Purchaser and related assignment of the Assignment of
Leases, if the Assignment of Leases is a separate document
from the Mortgage, is in recordable form (but for the
insertion of the name and address of the assignee and any
related recording information, which is not yet available
to Seller), and such assignments and any, or assignment of
any other agreement executed by or for the benefit of the
related Borrower, any guarantor or their successors or
assigns in connection with such Mortgage Loan from the
Seller to the Purchaser constitutes the legal, valid and
binding assignment from the Seller to the Purchaser, except
as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting the
enforcement of creditors' rights or by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(ix) Since origination (A) except as set forth in the related
Mortgage File, such Mortgage Loan has not been modified,
altered, satisfied, canceled, subordinated or rescinded in
whole or in part and (B) each related Mortgaged Property
has not been released, in whole or in part, from the lien
of the related Mortgage in any manner which materially
interferes with the security intended to be provided by
such Mortgage; and since September 30, 2005, no waiver,
consent, modification, assumption, alteration,
satisfaction, cancellation, subordination or rescission
which changes the terms of, or the security for, the
Mortgage Loan in any material respect has occurred or been
given;
(x) Each related Mortgage is a valid and enforceable first lien
on the related Mortgaged Property (subject to Permitted
Encumbrances (as defined below)), except as the enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and such
Mortgaged Property is free and clear of any mechanics' and
materialmen's liens which are prior to or equal with the
lien of the related Mortgage, except those which are bonded
over, escrowed for or insured against by a lender's title
insurance policy (as described below). A UCC financing
statement has been filed and/or recorded (or sent for
filing or recording) in all places necessary to perfect a
valid security interest in the personal property necessary
to operate the Mortgaged Property as currently operated;
and such security interest is a first priority security
interest, subject to any prior purchase money security
interest in such personal property, any personal property
leases applicable to such personal property and any other
security interest in such personal property which do not,
individually or in the aggregate, materially interfere with
the security intended to be provided for such Mortgage
Loan. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection
with the Mortgage Loan establishes and creates a valid and
enforceable lien on property described therein, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the
enforcement of creditors' rights or by general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(xi) The Seller has not taken any action that would cause the
representations and warranties made by the related Borrower
in the related Mortgage Loan Documents not to be true;
(xii) The Seller has no knowledge that the material
representations and warranties made by the related Borrower
in the related Mortgage Loan Documents are not true in any
material respect;
(xiii) The lien of each related Mortgage is a first priority lien
on the fee and/or leasehold interest of the related
Borrower in the principal amount of such Mortgage Loan or
allocated loan amount of the portions of the Mortgaged
Property covered thereby (as set forth in the related
Mortgage) after all advances of principal and is insured by
an ALTA lender's title insurance policy, or its equivalent
as adopted in the applicable jurisdiction, provided that if
such policy is yet to be issued, such insurance may be
evidenced by a "marked-up" pro forma policy or title
commitment in either case marked as binding and
countersigned by the title company or its authorized agent,
either on its face or by an acknowledged closing
instruction or escrow letter), or its equivalent as adopted
in the applicable jurisdiction, insuring the named
mortgagee and its successors and assigns as to such lien,
subject only to (A) the lien of current real property
taxes, water charges, sewer rents and assessments not yet
delinquent or accruing interest or penalties, (B)
covenants, conditions and restrictions, rights of way,
easements and other matters of public record, none of
which, individually or in the aggregate, materially
interferes with the current use of the Mortgaged Property
or the security intended to be provided by such Mortgage or
with the Borrower's ability to pay its obligations when
they become due or the value of the Mortgaged Property, (C)
the exceptions (general and specific) and exclusions set
forth in such policy, none of which, individually or in the
aggregate, materially interferes with the current general
use of the Mortgaged Property or materially interferes with
the security intended to be provided by such Mortgage or
with the related Borrower's ability to pay its obligations
when they become due or the value of the Mortgaged
Property, (D) the rights of tenants, as tenants only, under
leases, including subleases, pertaining to the related
Mortgaged Property, (E) if the related Mortgage Loan is
cross-collateralized with any other Mortgage Loan in the
trust fund, the lien of the Mortgage for that other
Mortgage Loan and (F) if the related Mortgaged Property is
a unit in a condominium, the related condominium
declaration (items (A), (B), (C), (D), (E) and (F),
collectively "Permitted Encumbrances"), and with respect to
each Mortgage Loan, such Permitted Encumbrances do not,
individually or in the aggregate, materially interfere with
the security intended to be provided by the related
Mortgage, the current principal use of the related
Mortgaged Property, the value of the related Mortgaged
Property or the current ability of the related Mortgaged
Property to generate income sufficient to service such
Mortgage Loan; the premium for such policy was paid in
full; such policy (or if it is yet to be issued, the
coverage to be afforded thereby) is issued by a title
insurance company licensed to issue policies in the state
in which the related Mortgaged Property is located (unless
such state is Iowa) and is assignable (with the related
Mortgage Loan) to the Purchaser without the consent of or
any notification to the insurer, and is in full force and
effect upon the consummation of the transactions
contemplated by this Agreement; no claims have been made
under such policy and the Seller has not undertaken any
action or omitted to take any action, and has no knowledge
of any such act or omission, which would impair or diminish
the coverage of such policy;
(xiv) The proceeds of such Mortgage Loan have been fully
disbursed and there is no requirement for future advances
thereunder, and no future advances have been made which are
not reflected in the related Mortgage File;
(xv) Except as set forth in a property inspection report or
engineering report prepared in connection with the
origination of the Mortgage Loan, as of the later of the
date of origination of such Mortgage Loan or the most
recent inspection of the related Mortgaged Property by the
Seller, as applicable, and to the knowledge of Seller as of
the date hereof, each related Mortgaged Property is free of
any material damage that would affect materially and
adversely the use or value of such Mortgaged Property as
security for the Mortgage Loan (normal wear and tear
excepted). If any of the inspection or engineering reports
referred to above in this paragraph (xv) revealed any
immediate repair items, then one of the following is true:
(A) the repairs and/or maintenance necessary to correct
such condition have been completed in all material
respects; (B) an escrow of funds is required or a letter of
credit was obtained in an amount reasonably estimated to be
sufficient to complete the repairs and/or maintenance
necessary to correct such condition; or (C) the reasonable
estimation at the time of origination of the Mortgage Loan
of the cost to complete the repairs and/or maintenance
necessary to correct such condition represented no more
than the greater of (1) $50,000 and (2) 2% of the value of
the related Mortgaged Property as reflected in an appraisal
conducted in connection with the origination of the subject
Mortgage Loan, as of the closing date for each Mortgage
Loan and, to the Seller's knowledge, as of the date hereof,
there is no proceeding pending for the total or partial
condemnation of such Mortgaged Property that would have a
material adverse effect on the use or value of the
Mortgaged Property;
(xvi) The Seller has inspected or caused to be inspected each
related Mortgaged Property within the past twelve months,
or the originator of the Mortgage Loan inspected or caused
to be inspected each related Mortgaged Property within
three months of origination of the Mortgage Loan;
(xvii) No Mortgage Loan has a shared appreciation feature, any
other contingent interest feature or a negative
amortization feature other than the ARD Loans which may
have negative amortization from and after the Anticipated
Repayment Date;
(xviii) Each Mortgage Loan is a whole loan, and neither the
Mortgage Loan nor the related Mortgage Loan Documents
create or grant an equity participation to Seller;
(xix) The Mortgage Rate (exclusive of any default interest, late
charges, or prepayment premiums) of such Mortgage Loan
complied as of the date of origination with, or was exempt
from, applicable state or federal laws, regulations and
other requirements pertaining to usury. Except to the
extent any noncompliance did not materially and adversely
affect the value of the related Mortgaged Property, the
security provided by the Mortgage or the related Borrower's
operations at the related Mortgaged Property, any and all
other requirements of any federal, state or local laws,
including, without limitation, truth-in-lending, real
estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to such Mortgage Loan have been
complied with as of the date of origination of such
Mortgage Loan;
(xx) Neither Seller nor, to Seller's knowledge, any originator,
committed any fraudulent acts during the origination
process of any Mortgage Loan and (i) the origination of
each Mortgage Loan is in all respects legal, proper and
prudent in accordance with customary commercial mortgage
lending standards and (ii) the servicing and collection of
each Mortgage Loan is in all respects legal, proper and
prudent in accordance with servicing standard and no other
person has been granted or conveyed the right to service
the Mortgage Loans or receive any consideration in
connection therewith, except as provided in the Servicing
Agreement, any permitted subservicing agreements and/or
servicing rights purchase agreements being executed and
delivered in connection therewith;
(xxi) All taxes and governmental assessments that became due and
owing prior to the date hereof with respect to each related
Mortgaged Property and that are or may become a lien of
priority equal to or higher than the lien of the related
Mortgage have been paid or an escrow of funds has been
established and such escrow (including all escrow payments
required to be made prior to the delinquency of such taxes
and assessments) is sufficient to cover the payment of such
taxes and assessments;
(xxii) All escrow deposits and payments required to be in the
possession or under the control of the Seller pursuant to
each Mortgage Loan are in the possession, or under the
control, of the Seller or its agent and there are no
deficiencies (subject to any applicable grace or cure
periods) in connection therewith and all such escrows and
deposits are being conveyed by the Seller to the Purchaser
and identified as such with appropriate detail, and any and
all requirements for the disbursement of any such escrows
have been complied with in all material respects;
(xxiii) Each related Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by an insurer
meeting the requirements of the Servicing Agreement, in an
amount not less than the lesser of the principal amount of
the related Mortgage Loan and the replacement cost (with no
deduction for physical depreciation) and not less than the
amount necessary to avoid the operation of any co-insurance
provisions with respect to the related Mortgaged Property;
each related Mortgaged Property is also covered by business
interruption or rental loss insurance which covers a period
of not less than 12 months and comprehensive general
liability insurance in amounts generally required by
prudent commercial mortgage lenders for similar properties;
all Mortgaged Properties in California or in a seismic zone
4 or 5 have had a seismic assessment done and earthquake
insurance was obtained to the extent any such Mortgaged
Property has a probable maximum loss in the event of an
earthquake of greater than twenty percent (20%) of the
replacement value of the related improvements; if the
Mortgaged Property for any Mortgage Loan is located within
Florida or within 25 miles of the coast of North Carolina,
South Carolina, Georgia, Alabama, Mississippi, Louisiana or
Texas, then, such Mortgaged Property is insured by
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 insurable replacement
cost of the improvements located on the related Mortgaged
Property; the Mortgaged Properties securing all of the
Mortgage Loans having a Cut off Date Principal Balance in
excess of $3,000,000 have, as of the date hereof, insurance
policies in place with respect to acts of terrorism or
damage related thereto (excluding acts involving nuclear,
biological or chemical terrorism), except any such Mortgage
Loans that are listed on the applicable Exception Report.
All premiums on such insurance policies required to be paid
as of the date hereof have been paid; such insurance
policies require prior notice to the insured of termination
or cancellation, and no such notice has been received by
the Seller; such insurance names the lender under the
Mortgage Loan and its successors and assigns as a named or
additional insured; each related Mortgage Loan obligates
the related Borrower to maintain all such insurance and, at
such Borrower's failure to do so, authorizes the lender to
maintain such insurance at the Borrower's cost and expense
and to seek reimbursement therefor from such Borrower;
(xxiv) There is no monetary default (other than payments due but
not yet 30 days or more past due), breach, violation or
event of acceleration existing under the related Mortgage
Loan; and, to the Seller's knowledge, there is no (A)
non-monetary default, breach, violation or event of
acceleration existing under the related Mortgage Loan or
(B) event (other than payments due but not yet 30 days or
more past due) which, with the passage of time or with
notice and the expiration of any grace or cure period,
would and does constitute a default, breach, violation or
event of acceleration, which default, breach, violation or
event of acceleration, in the case of either (A) or (B)
materially and adversely affects the use or value of the
Mortgage Loan or 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 or
warranty made by the Seller in any of the other paragraphs
of this Exhibit A;
(xxv) No Mortgage Loan has been more than 30 days delinquent in
making required payments since origination and as of the
Cut-off Date no Mortgage Loan is 30 or more days delinquent
in making required payments;
(xxvi) (A) Each related Mortgage contains provisions so as to
render the rights and remedies of the holder thereof
adequate for the practical realization against the
Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if
applicable, non-judicial foreclosure or, subject to
applicable state law requirements, appointment of a
receiver, and (B) there is no exemption available to the
Borrower which would interfere with such right to
foreclose, except, in the case of either (A) or (B) as the
enforcement of the Mortgage may be limited by bankruptcy,
insolvency, reorganization, moratorium, redemption or other
laws affecting the enforcement of creditors' rights or by
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or
at law). No Borrower is a debtor in a state or federal
bankruptcy or insolvency proceeding;
(xxvii) At origination, each Borrower represented and warranted in
all material respects that to its knowledge, except as set
forth in certain environmental reports and, except as
commonly used in the operation and maintenance of
properties of similar kind and nature to the Mortgaged
Property, in accordance with prudent management practices
and applicable law, and in a manner that does not result in
any contamination of the Mortgaged Property, it has not
used, caused or permitted to exist and will not use, cause
or permit to exist on the related Mortgaged Property any
hazardous materials in any manner which violates federal,
state or local laws, ordinances, regulations, orders,
directives or policies governing the use, storage,
treatment, transportation, manufacture, refinement,
handling, production or disposal of hazardous materials or
other environmental laws; the related Borrower or an
affiliate thereof agreed to indemnify, defend and hold the
mortgagee and its successors and assigns harmless from and
against losses, liabilities, damages, injuries, penalties,
fines, expenses, and claims of any kind whatsoever
(including attorneys' fees and costs) paid, incurred or
suffered by, or asserted against, any such party resulting
from a breach of the foregoing representations, warranties
or covenants given by the Borrower in connection with such
Mortgage Loan. A Phase I environmental report (or, with
respect to residential cooperative loans with an original
principal balance of $350,000 or less, a transaction screen
process report meeting ASTM standards) and, with respect to
certain Mortgage Loans, a Phase II environmental report,
was conducted by a reputable independent environmental
consulting firm in connection with such Mortgage Loan,
which report (or transaction screen) did not indicate any
material non-compliance with applicable environmental laws
or material existence of hazardous materials or, if any
material non-compliance or material existence of hazardous
materials was indicated in any such report (or transaction
screen), then at least one of the following statements is
true: (A) funds reasonably estimated to be sufficient to
cover the cost to cure any material non-compliance with
applicable environmental laws or material existence of
hazardous materials have been escrowed, or a letter of
credit in such amount has been provided, by the related
Borrower and held by the related mortgagee; (B) if the
environmental report recommended an operations and
maintenance plan, but not any material expenditure of
funds, an operations and maintenance plan has been required
to be obtained by the related Borrower; (C) the
environmental condition identified in the related
environmental report was remediated or abated in all
material respects prior to the date hereof; (D) a no
further action or closure letter was obtained from the
applicable governmental regulatory authority (or the
environmental issue affecting the related Mortgaged
Property was otherwise listed by such governmental
authority as "closed"); (E) such conditions or
circumstances identified in the Phase I environmental
report were investigated further and based upon such
additional investigation, an environmental consultant
recommended no further investigation or remediation; (F) a
party with financial resources reasonably estimated to be
adequate to cure the condition or circumstance provided a
guaranty or indemnity to the related Borrower to cover the
costs of any required investigation, testing, monitoring or
remediation; (G) the expenditure of funds reasonably
estimated to be necessary to effect such remediation is not
greater than $50,000 and 2% of the outstanding principal
balance of the related Mortgage Loan; or (H) a lender's
environmental insurance policy was obtained and is a part
of the related Mortgage File. Notwithstanding the preceding
sentence, with respect to certain Mortgage Loans with an
original principal balance of less than $3,000,000, no
environmental report may have been obtained, but (in such
cases where a Phase I environmental report was not
obtained) a lender's secured creditor impaired property
environmental insurance policy was obtained with respect to
each such Mortgage Loan. Each of such secured creditor
impaired property environmental insurance policies is a
part of the related Mortgage File. Each of such
environmental insurance policies is in full force and
effect, is in an amount not less than the 100% of the
balance of the related Mortgage Loan, and has a term
extending not less than five years after the maturity date
of the related Mortgage Loan; the premiums for such
policies have been paid in full and the Purchaser is named
as an insured under each of such policies; and Seller has
delivered to the insurer all related environmental reports
in its possession. To Seller's knowledge, in reliance on
such environmental reports and except as set forth in such
environmental reports, each Mortgaged Property is in
material compliance with all applicable federal, state and
local environmental laws, and to Seller's knowledge, no
notice of violation of such laws has been issued by any
governmental agency or authority, except, in all cases, as
indicated in such environmental reports or other documents
previously provided to the Rating Agencies; and the Seller
has not taken any action which would cause the Mortgaged
Property to not be in compliance with all federal, state
and local environmental laws pertaining to environmental
hazards;
(xxviii) (1) Each Mortgage Loan contains provisions for the
acceleration of the payment of the unpaid principal balance
of such Mortgage Loan if, without the consent of the holder
of the Mortgage (and the Mortgage requires the mortgagor to
pay all fees and expenses associated with obtaining such
consent), the related Mortgaged Property is directly or
indirectly transferred or sold, and (2) except with respect
to transfers of certain interests in the related Borrower
to persons already holding interests in the Borrower, their
family members, affiliated companies and other estate
planning related transfers that satisfy certain criteria
specified in the related Mortgage (which criteria is
consistent with the practices of prudent commercial
mortgage lenders) or any transfers in connection with the
death or disability of owners of the Borrower or, if the
related Mortgaged Property is a residential cooperative
property, transfers of stock of the related Borrower in
connection with the assignment of a proprietary lease for a
unit in the related Mortgaged Property by a
tenant-shareholder of the related Borrower to other persons
who by virtue of such transfers become tenant-shareholders
in the related Borrower, each Mortgage Loan also contains
the provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without
the consent of the holder of the Mortgage (and the Mortgage
requires the mortgagor to pay all fees and expenses
associated with obtaining such consent), a majority
interest in the related Borrower is directly or indirectly
transferred or sold;
(xxix) All improvements included in the related appraisal are
within the boundaries of the related Mortgaged Property,
except for encroachments onto adjoining parcels for which
the Seller has obtained title insurance against losses
arising therefrom or that do not materially and adversely
affect the use or value of such Mortgaged Property. No
improvements on adjoining parcels encroach onto the related
Mortgaged Property except for encroachments that do not
materially and adversely affect the value of such Mortgaged
Property, the security provided by the Mortgage, the
current use of the Mortgaged Property or the related
Borrower's operations at the Mortgaged Property;
(xxx) The information pertaining to the Mortgage Loans which is
set forth in the Mortgage Loan Schedule attached as an
exhibit to this Agreement is complete and accurate in all
material respects as of the dates of the information set
forth therein (or, if not set forth therein, as of the
Cut-Off Date);
(xxxi) With respect to any Mortgage Loan where all or any portion
of the estate of the related Borrower therein is a
leasehold estate under a ground lease, and the related
Mortgage does not also encumber the related lessor's fee
interest in such Mortgaged Property, based upon the terms
of the ground lease and any estoppel received from the
ground lessor, the Seller represents and warrants that:
(A) The ground lease or a memorandum regarding such ground
lease has been duly recorded. The ground lease permits the
interest of the lessee to be encumbered by the related
Mortgage and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or
assigns in a manner that would adversely affect the
security provided by the related Mortgage. To Seller's
knowledge, there has been no material change in the terms
of the ground lease since its recordation, except by any
written instruments which are included in the related
Mortgage File;
(B) The lessor under such ground lease has agreed in a
writing included in the related Mortgage File that the
ground lease may not be amended, modified, canceled or
terminated without the prior written consent of the lender
and that any such action without such consent is not
binding on the lender, its successors or assigns;
(C) The ground lease has an original term (or an original
term plus one or more optional renewal terms, which, under
all circumstances, may be exercised, and will be
enforceable, by the lender) that extends not less than 10
years beyond the amortization term of the related Mortgage
Loan;
(D) Based on the title insurance policy (or binding commitment
therefor) obtained by the Seller, the ground lease is not
subject to any liens or encumbrances superior to, or of
equal priority with, the Mortgage, subject to Permitted
Encumbrances and liens that encumber the ground lessor's
fee interest;
(E) The ground lease is assignable to the lender and its
assigns without the consent of the lessor thereunder;
(F) As of the Closing Date, the ground lease is in full
force and effect, and the Seller has no actual knowledge
that any default beyond applicable notice and grace periods
has occurred or that there is any existing condition which,
but for the passage of time or giving of notice, would
result in a default under the terms of the ground lease;
(G) The ground lease or an ancillary agreement, which is
part of the Mortgage File, between the lessor and the
lessee requires the lessor to give notice of any default by
the lessee to the lender;
(H) A lender is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain
possession of the interest of the lessee under the ground
lease through legal proceedings, or to take other action so
long as the lender is proceeding diligently) to cure any
default under the ground lease which is curable after the
receipt of notice of any default, before the lessor may
terminate the ground lease. All rights of the lender under
the ground lease and the related Mortgage (insofar as it
relates to the ground lease) may be exercised by or on
behalf of the lender;
(I) The ground lease does not impose any restrictions on
subletting that would be viewed as commercially
unreasonable by a prudent commercial mortgage lender. The
lessor is not permitted, in absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of
any subtenant of the lessee in the relevant portion of the
Mortgaged Property subject to the ground lease for any
reason, or in any manner, which would adversely affect the
security provided by the related Mortgage;
(J) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially
total loss or taking) will be applied either to the repair
or restoration of all or part of the related Mortgaged
Property, with the lender or a trustee appointed by it
having the right to hold and disburse such proceeds as
repair or restoration progresses (except in any case where
a provision entitling another party to hold and disburse
such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or
to the payment of the outstanding principal balance of the
Mortgage Loan, together with any accrued interest, except
that in the case of condemnation awards, the ground lessor
may be entitled to a portion of such award;
(K) Under the terms of the ground lease and the related
Mortgage, any related insurance proceeds, or condemnation
award in respect of a total or substantially total loss or
taking of the related Mortgaged Property will be applied
first to the payment of the outstanding principal balance
of the Mortgage Loan, together with any accrued interest
(except as provided by applicable law or in cases where a
different allocation would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender,
taking into account the relative duration of the ground
lease and the related Mortgage and the ratio of the market
value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan). Until the
principal balance and accrued interest are paid in full,
neither the lessee nor the lessor under the ground lease
will have an option to terminate or modify the ground lease
without the prior written consent of the lender as a result
of any casualty or partial condemnation, except to provide
for an abatement of the rent; and
(L) Provided that the lender cures any defaults which are
susceptible to being cured, the lessor has agreed to enter
into a new lease upon termination of the ground lease for
any reason, including rejection of the ground lease in a
bankruptcy proceeding;
(xxxii) With respect to any Mortgage Loan where all or a
material portion of the estate of the related Borrower therein is a leasehold
estate, but the related Mortgage also encumbers the related lessor's fee
interest in such Mortgaged Property: (A) such lien on the related fee interest
is evidenced by the related Mortgage, (B) such Mortgage does not by its terms
provide that it will be subordinated to the lien of any other mortgage or
encumbrance upon such fee interest, (C) upon the occurrence of a default under
the terms of such Mortgage by the related Borrower, any right of the related
lessor to receive notice of, and to cure, such default granted to such lessor
under any agreement binding upon the Seller would not be considered commercially
unreasonable in any material respect by prudent commercial mortgage lenders, (D)
the related lessor has agreed in a writing included in the related Mortgage File
that the related ground lease may not be amended or modified without the prior
written consent of the lender and that any such action without such consent is
not binding on the lender, its successors or assigns, and (E) the related ground
lease is in full force and effect, and the Seller has no actual knowledge that
any default beyond applicable notice and grace periods has occurred or that
there is any existing condition which, but for the passage of time or giving of
notice, would result in a default under the terms of such ground lease;
(xxxiii) [Reserved];
(xxxiv) Neither Seller nor any affiliate thereof has any obligation
to make any capital contribution to any Borrower under a Mortgage Loan, other
than contributions made on or prior to the date hereof;
(xxxv) (A) The Mortgage Loan is directly secured by a Mortgage on
a commercial property or multifamily residential property, and (B) the fair
market value of such real property, as evidenced by an appraisal satisfying the
requirements of FIRREA conducted within 12 months of the origination of the
Mortgage Loan, was at least equal to 80% of the principal amount of the Mortgage
Loan (1) at origination (or if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a time when
the Mortgage Loan was not in default or default with respect thereto was not
reasonably foreseeable, the date of the last such modification) or (2) at the
date hereof; provided that the fair market value of the real property must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in (1) and (2) shall be made on an aggregated basis);
(xxxvi) There are no subordinate mortgages encumbering the
related Mortgaged Property, nor are there any preferred equity interests held by
the Seller or any mezzanine debt related to such Mortgaged Property;
(xxxvii) Except in cases where the related Mortgaged Property is a
residential cooperative property, the Mortgage Loan Documents executed in
connection with each Mortgage Loan having an original principal balance in
excess of $4,000,000 require that the related Borrower be a single-purpose
entity (for this purpose, "single-purpose entity" shall mean an entity, other
than an individual, having organizational documents which provide substantially
to the effect that it is formed or organized solely for the purpose of owning
and operating one or more Mortgaged Properties, is prohibited from engaging in
any business unrelated to such property and the related Mortgage Loan, does not
have any assets other than those related to its interest in the related
Mortgaged Property or its financing, or any indebtedness other than as permitted
under the related Mortgage Loan). To Seller's actual knowledge, each Borrower
has fully complied with the requirements of the related Note and Mortgage and
Borrower's organizational documents regarding single-purpose entity status;
(xxxviii) Except in cases where the related Mortgage Property is a
residential cooperative property, each Mortgage Loan prohibits the related
Borrower from mortgaging or otherwise encumbering the Mortgaged Property, or any
controlling equity interest in the Borrower, without the prior written consent
of the mortgagee or the satisfaction of debt service coverage or similar
criteria specified in the Note or Mortgage which would be acceptable to a
reasonably prudent commercial mortgage lender, and, except in connection with
trade debt and equipment financings in the ordinary course of Borrower's
business, from carrying any additional indebtedness, except, in each case, liens
contested in accordance with the terms of the Mortgage Loans or, with respect to
each Mortgage Loan having an original principal balance of less than $4,000,000,
any unsecured debt;
(xxxix) Each Borrower covenants in the Mortgage Loan Documents that
it shall remain in material compliance with all material licenses, permits and
other legal requirements necessary and required to conduct its business;
(xl) Each Mortgaged Property (A) is located on or adjacent
to a dedicated road, or has access to an irrevocable easement permitting ingress
and egress, (B) is served by public utilities and services generally available
in the surrounding community or otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized, and (C) constitutes one or more
separate tax parcels or is covered by an endorsement with respect to the matters
described in (A), (B) or (C) under the related title insurance policy (or the
binding commitment therefor);
(xli) Based solely on a flood zone certification or a survey of
the related Mortgaged Property, if any portion of the improvements on the
Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency or the Secretary of Housing and Urban Development as having
special flood hazards categorized as Zone "A" or Zone "V" and flood insurance is
available, the terms of the Mortgage Loan require the Borrower to maintain flood
insurance, or at such Borrower's failure to do so, authorizes the Lender to
maintain such insurance at the cost and expense of the Borrower and such
insurance is in full force and effect in an amount not less than the lesser of
(A) the replacement costs of the material improvements on such Mortgaged
Property, (B) the balance of the Mortgage Loan and (C) the maximum amount of
insurance available under the applicable National Flood Insurance Administration
Program;
(xlii) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently so
serves and is named in the deed of trust or has been substituted in accordance
with applicable law or may be substituted in accordance with applicable law by
the related mortgagee, and except in connection with a trustee's sale after a
default by the related Borrower, no fees are payable to such trustee;
(xliii) RESERVED.
(xliv) To the knowledge of the Seller as of the date hereof, there
was no pending action, suit or proceeding, arbitration or governmental
investigation against any Borrower or Mortgaged Property, an adverse outcome of
which would materially and adversely affect such Borrower's ability to perform
under the related Mortgage Loan;
(xlv) No advance of funds has been made by the Seller to the
related Borrower (other than mezzanine debt, other existing subordinate debt and
the acquisition of preferred equity interests by the preferred equity interest
holder), and no funds have, to the Seller's knowledge, been received from any
person other than, or on behalf of, the related Borrower, for, or on account of,
payments due on the Mortgage Loan;
(xlvi) To the extent required under applicable law, as of the
Cut-off Date or as of the date that such entity held the Note, each holder of
the Note was authorized to transact and do business in the jurisdiction in which
each related Mortgaged Property is located, or the failure to be so authorized
did not materially and adversely affect the enforceability of such Mortgage
Loan;
(xlvii) All collateral for the Mortgage Loans is being transferred
as part of the Mortgage Loans;
(xlviii) No Mortgage Loan requires the lender to release any portion
of the Mortgaged Property from the lien of the related Mortgage except upon (A)
payment in full or defeasance of the related Mortgage Loan, (B) the satisfaction
of certain legal and underwriting requirements that would be customary for
prudent commercial mortgage lenders, which in all events include payment of a
release price at least 125% of the appraised value of the property to be
released or of the allocated loan amount of such property, (C) releases of
unimproved out-parcels or (D) releases of portions of the Mortgaged Property
which will not have a material adverse effect on the use or value of the
collateral for the related Mortgage Loan and which were given no value in the
appraisal of the Mortgaged Property or of that portion of the Mortgaged Property
used to calculate the loan-to-value ratio of the Mortgaged Property for
underwriting purposes. No release or partial release of any Mortgaged Property,
or any portion thereof, expressly permitted or required pursuant to the terms of
any Mortgage Loan would constitute a significant modification of the related
Mortgage Loan under Treas. Reg. Section 1.860G-2(b)(2);
(xlix) Except as provided in paragraphs (xxxi)(J) and (K)
above, any insurance proceeds or condemnation awards in respect of a casualty
loss or taking will be applied either to (A) the repair or restoration of all or
part of the related Mortgaged Property, with, in the case of all casualty losses
or takings in excess of a specified amount or percentage that a prudent
commercial lender would deem satisfactory and acceptable, the lender (or a
trustee appointed by it) having the right to hold and disburse such proceeds as
the repair or restoration progresses (except in any case where a provision
entitling another 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 such Mortgage Loan together
with any accrued interest thereon;
(l) Each Form UCC-1 financing statement, if any, filed with
respect to personal property constituting a part of the related Mortgaged
Property and each Form UCC-2 or UCC-3 assignment, if any, of such financing
statement to the Seller was, and each Form UCC-3 assignment, if any, of such
financing statement in blank which the Purchaser or its designee is authorized
to complete (but for the insertion of the name of the assignee and any related
filing information which is not yet available to the Seller) is, in suitable
form for filing in the filing office in which such financing statement was
filed;
(li) To the Seller's knowledge, (A) each commercial lease
covering more than 10% (20% in the case of any Mortgage Loan having an original
principal balance less than $2,500,000) of the net leaseable area of the related
Mortgaged Property is in full force and effect and (B) there exists no default
under any such commercial lease either by the lessee thereunder or by the
related Borrower that could give rise to the termination of such lease;
(lii) Based upon an opinion of counsel and/or other due diligence
considered reasonable by prudent commercial mortgage lenders in the lending area
where the subject 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. With respect to
any Mortgage Loan with a Stated Principal Balance as of the Closing Date of over
$10,000,000, if the related Mortgaged Property does not so comply, to the extent
the Seller is aware of such non-compliance, it has required the related Borrower
to obtain law and ordinance insurance coverage in amounts customarily required
by prudent commercial mortgage lenders;
(liii) Each Mortgage Loan constitutes a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulation Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage or any substantially similar successor
provision), the related Mortgaged Property, if acquired by a REMIC in connection
with the default or imminent default of such Mortgage Loan would constitute
"foreclosure property" within the meaning of Code Section 860G(a)(8) and all
Prepayment Premiums and Yield Maintenance Charges with respect to such Mortgage
Loan constitute "customary prepayment penalties" within the meaning of Treasury
Regulation Section 1.860G-1(b)(2);
(liv) With respect to any Mortgage Loan that pursuant to the
Mortgage Loan Documents can be defeased, (A) the Mortgage Loan cannot be
defeased within two years after the Closing Date, (B) the Borrower can pledge
only "government securities" (within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended) in an amount sufficient to make all
scheduled payments under the Mortgage Loan when due, (C) the Borrower is
required to provide independent certified public accountant's certification that
the collateral is sufficient to make such payments, (D) the loan may be required
to be assumed by a single-purpose entity designated by the holder of the
Mortgage Loan, (E) the Borrower is required to provide an opinion of counsel
that the Purchaser (and its successors and assigns) has a perfected security
interest in such collateral prior to any other claim or interest, (F) the
Borrower is required to pay all Rating Agency fees associated with defeasance
(if rating confirmation is a specific condition precedent thereto) and all other
reasonable expenses associated with defeasance, including, but not limited to,
accountant's fees and opinions of counsel, (G) with respect to any significant
trust mortgage loan, the Borrower is required to provide an opinion of counsel
that such defeasance will not cause any REMIC created under any pooling and
servicing agreement to fail to qualify as a REMIC for federal or applicable
state tax purposes and (H) with respect to any significant trust mortgage loan,
the Borrower must obtain Rating Agency confirmation from each Rating Agency that
the defeasance would not result in such Rating Agency's withdrawal, downgrade or
qualification of the then current rating of any class of certificates rated by
such Rating Agency;
(lv) The Mortgage Loan Documents for each Mortgage Loan provide
that the related Borrower thereunder shall be liable to the Seller for any
losses incurred by the Seller due to (A) the misapplication or misappropriation
of rents, insurance proceeds or condemnation awards, (B) any willful act of
material waste, (C) any breach of the environmental covenants contained in the
related Mortgage Loan Documents, and (D) fraud by the related Borrower; provided
that, with respect to clause (C) of this sentence, an indemnification against
losses related to such violations or environmental insurance shall satisfy such
requirement; and provided, further, that if the related Mortgaged Property is a
residential cooperative property, then the subject Mortgage Loan is fully
recourse to the related Borrower;
(lvi) If such Mortgage Loan is an ARD Loan, it commenced
amortizing on its initial scheduled Due Date and provides that: (A) its Mortgage
Rate will increase by no more than two percentage points in connection with the
passage of its Anticipated Repayment Date and so long as the Mortgage Loan is an
asset of the Trust Fund; (B) its Anticipated Repayment Date is not less than
seven years following the origination of such Mortgage Loan; (C) no later than
the related Anticipated Repayment Date, if it has not previously done so, the
related Borrower is required to enter into a "lockbox agreement" whereby all
revenue from the related Mortgaged Property shall be deposited directly into a
designated account controlled by the Servicer; and (D) any cash flow from the
related Mortgaged Property that is applied to amortize such Mortgage Loan
following its Anticipated Repayment Date shall, to the extent such net cash flow
is in excess of the Monthly Payment payable therefrom, be net of budgeted and
discretionary (servicer approved) capital expenditures;
(lvii) Except for the Mortgage Loans with an initial principal
balance less than $3,000,000, in connection with its origination or acquisition
of each Mortgage Loan, Seller obtained an appraisal of the related Mortgage
Property, which appraisal is signed by an appraiser, who, to Seller's actual
knowledge, had no interest, direct or indirect, in the Borrower, the Mortgage
Property or in any loan made on the security of the Mortgage Property, and whose
compensation was not affected by the approval or disapproval of the Mortgage
Loan; and
(lviii) The Seller has delivered to the Purchaser or a custodian
appointed thereby, with respect to each Mortgage Loan, in accordance with
Section 3 of this Agreement, a complete Mortgage File.
EXHIBIT B
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of National Consumer
Cooperative Bank ("NCB");
2. that _______________ is the owner and holder of a mortgage
loan in the original principal amount of $______________ secured by a mortgage
(the "Mortgage") on the premises known as ______________ ______________ located
in;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by ____________,
to _______________, under date of ______________ (the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and
correct copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has
any right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Column
Financial, Inc. (the "Purchaser"), NCB covenants and agrees (a) promptly to
deliver to the Purchaser the original Note if it is subsequently found, and (b)
to indemnify and hold harmless the Purchaser and its successors and assigns from
and against any and all costs, expenses and monetary losses arising as a result
of _______________'s failure to deliver said original Note to the Purchaser.
NATIONAL CONSUMER COOPERATIVE BANK
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2005
EXHIBIT D
AFFIDAVIT OF LOST NOTE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
____________________________, being duly sworn, deposes and says:
1. that he is an authorized signatory of Column Financial, Inc.
("Column");
2. that _______________ is the owner and holder of a mortgage loan
in the original principal amount of $______________ secured by a mortgage (the
"Mortgage") on the premises known as ______________ ______________ located in
______________;
3. that _______________, after having conducted a diligent
investigation of its records and files, has been unable to locate the following
original note and believes that said original note has been lost, misfiled,
misplaced or destroyed due to a clerical error:
a note in the original sum of $______________ made by
______________, to _______________, under date of ______________
(the "Note");
4. that the Note is now owned and held by _______________;
5. that the copy of the Note attached hereto is a true and correct
copy thereof;
6. that the Note has not been paid off, satisfied, assigned,
transferred, encumbered, endorsed, pledged, hypothecated, or otherwise disposed
of and that the original Note has been either lost, misfiled, misplaced or
destroyed;
7. that no other person, firm, corporation or other entity has any
right, title, interest or claim in the Note except _______________; and
8. upon assignment of the Note by _______________ to Credit Suisse
First Boston Mortgage Securities Corp. (the "Depositor") and subsequent
assignment by Depositor to the trustee for the benefit of the holders of the
Credit Suisse First Boston Mortgage Securities Corp. Commercial Mortgage
Pass-Through Certificates, Series 2005-C5 (the "Trustee") (which assignment may,
at the discretion of Depositor, be made directly by _______________ to the
Trustee), _______________ covenants and agrees (a) promptly to deliver to the
Trustee the original Note if it is subsequently found, and (b) to indemnify and
hold harmless the Trustee and its successors and assigns from and against any
and all costs, expenses and monetary losses arising as a result of
_______________'s failure to deliver said original Note to the Trustee.
COLUMN FINANCIAL, INC.
By:____________________________________
Name:
Title:
Sworn to before me this _____
day of __________, 2005
