MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of March 14, 2007, between GERMAN AMERICAN CAPITAL CORPORATION, as seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". Eleven of the Mortgage Loans (the "ACS
Loans") were purchased by the Seller pursuant to a mortgage loan purchase
agreement, dated and effective as of March 14, 2007 (the "ACS Purchase
Agreement"), between American Capital Strategies, Ltd., as seller ("ACS") and
the Seller, as purchaser. The Purchaser intends to deposit the Mortgage Loans,
along with certain other mortgage loans (the "Other Mortgage Loans"), into a
trust fund (the "Trust Fund"), the beneficial ownership of which will be
evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated as of March 1, 2007, among CCMSI, as depositor, Midland
Loan Services, Inc., Wachovia Bank, National Association and Capmark Finance
Inc., as master servicers (each, a "Master Servicer" and, together, the "Master
Servicers"), LNR Partners, Inc., as special servicer (the "Special Servicer"),
▇▇▇▇▇ Fargo Bank, National Association, as trustee (the "Trustee") and LaSalle
Bank National Association, as certificate administrator (the "Certificate
Administrator"). Capitalized terms used herein (including the schedules attached
hereto) but not defined herein (or in such schedules) have the respective
meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
Deutsche Bank Securities Inc. ("DBS"), LaSalle Financial Services, Inc., RBC
Capital Markets Corporation and PNC Capital Markets LLC (collectively, the
"Dealers"), pursuant to an underwriting agreement dated as of the date hereof
(the "Underwriting Agreement"), between CCMSI and the Dealers. The Publicly
Offered Certificates are more particularly described in a prospectus supplement
dated March 14, 2007 (the "Prospectus Supplement") and the accompanying base
prospectus dated March 5, 2007 (the "Base Prospectus" and, together with the
Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and DBS, pursuant to
a certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI, CGMI and DBS. The Privately Offered
Certificates are more particularly described in an offering memorandum dated
March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and/or Standard & Poor's Rating
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $2,115,270,058 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The Seller Mortgage Loan
Balance, together with the aggregate principal balance of the Other Mortgage
Loans as of the Cut-off Date (after giving effect to any payments due on or
before such date whether or not such payments are received), is expected to
equal an aggregate principal balance (the "Cut-off Date Pool Balance") of
$6,599,815,279 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on March 29, 2007 or such other date
as shall be mutually acceptable to the parties to this Agreement (the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the Mortgage
Loans shall consist of a cash amount, payable in immediately available funds, as
reflected on the settlement statement agreed to by the Seller and the Purchaser,
which amount shall include interest accrued on the Seller Mortgage Loan Balance
for the period from and including the Cut-off Date up to but not including the
Closing Date. The Aggregate Purchase Price shall be reduced, with respect to the
Late Payment Date Loans, by an amount equal to one month of interest payable by
the related borrower, which amount shall be used to make an interest-only
payment in respect of such Mortgage Loan to the Certificateholders in April
2007. "Late Payment Date Loans" mean those ACS Loans known as (and identified on
the Mortgage Loan Schedule as) JQH Hotel Portfolio B-Note, 24 Hour Fitness and
Big Kmart-▇▇▇▇▇▇▇▇. The Aggregate Purchase Price shall be reduced, with respect
to the Initial Date Deposit Loans, by their respective Initial Date Deposits.
For purposes of the foregoing, the Initial Date Deposit Loans are those Mortgage
Loans known as (and identified on the Mortgage Loan Schedule as) ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ Business Center Building and
▇▇▇▇▇▇▇ Building.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by
the Seller of the Aggregate Purchase Price and satisfaction or waiver of the
other conditions to closing that are for the benefit of the Seller, the Seller
does hereby sell, transfer, assign, set over and otherwise convey to the
Purchaser, without recourse (except as set forth in this Agreement), all the
right, title and interest of the Seller in and to the Mortgage Loans identified
on the Mortgage Loan Schedule as of such date, on a servicing-released basis,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance and
any escrow, reserve or comparable accounts related to the Mortgage Loans,
subject, in the case of any Mortgage Loan that is part of a Loan
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Combination, to the rights of the holder(s) of any other mortgage loan(s) in the
related Loan Combination in such proceeds and reserve or comparable accounts,
and further subject to the understanding that the Seller will sell certain
servicing rights to the applicable Master Servicer pursuant to that certain
Servicing Rights Purchase Agreement, dated as of the Closing Date, between such
Master Servicer and the Seller, and may require that a particular primary
servicer remain in place with respect to any or all of the Mortgage Loans. In
addition, with respect to the ACS Loans, the Seller assigns to the Purchaser all
rights of the Seller under the ACS Purchase Agreement, including the right to
enforce directly against ACS all repurchase and other obligations described in
Section 3 of the ACS Purchase Agreement, including the requirement that in the
event an Early Defeasance (as defined in the ACS Purchase Agreement) is
exercised by a borrower, ACS is obligated to repurchase the related Early
Defeasance Loan (as defined in the ACS Purchase Agreement) at the Purchase
Price, together with a yield maintenance payment.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver or cause to be delivered to the Trustee (with a copy
(except in the case of an Outside Serviced Trust Mortgage Loan or any letter of
credit referred to in clause (xi)(D) below) to the applicable Master Servicer
and the Special Servicer within ten (10) Business Days after the Closing Date)
the documents and instruments specified below under clauses (i), (ii), (vii),
(ix)(A) and (xi)(D) and shall, not later than the date that is 30 days after the
Closing Date, deliver or cause to be delivered to the Trustee (with a copy to
the applicable Master Servicer) the remaining documents and instruments
specified below, in each case with respect to each Mortgage Loan that is a
Serviced Trust Mortgage Loan (the documents and instruments specified below,
collectively, the "Mortgage File"). The Mortgage File for each Serviced Trust
Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage
Loan, the original executed Mortgage Note including any power of attorney
related to the execution thereof, together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of "▇▇▇▇▇ Fargo Bank, National Association, as trustee for the
registered holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Serviced Non-Trust Mortgage
Loan, a copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
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(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "▇▇▇▇▇ Fargo Bank,
National Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iii) above), in favor of "▇▇▇▇▇ Fargo Bank, National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan Noteholder(s)),
or in blank;
(vi) originals or copies of any consolidation,
assumption, substitution and modification agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate
of lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or specimen version of, or a marked commitment
for, the policy that has been executed by an authorized representative of
the title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or
other evidence of filing reasonably satisfactory to the Purchaser of any
prior UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing office;
and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "▇▇▇▇▇ Fargo Bank, National Association,
as trustee for the registered holders of CD 2007-CD4 Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD 2007-CD4"
(and, in the case of any A/B Loan Combination, also on behalf of the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as assignee, or
in blank;
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(ix) an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating to a
Trust Mortgage Loan (with the original of any such letter of credit to be
delivered to the applicable Master Servicer).
No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a copy to the
Master Servicer and the Special Servicer within ten (10) Business Days after the
Closing Date) the documents and instruments specified below with respect to each
of the Outside Serviced Trust Mortgage Loans (with respect to each Outside
Serviced Trust Mortgage Loan, the documents and instruments specified below,
collectively, the "Mortgage File"). The Mortgage File for each Outside Serviced
Trust Mortgage Loan shall contain the following documents:
(x) the original executed Mortgage Note for such Outside
Serviced Trust Mortgage Loan including any power of attorney related to
the execution thereof, together with any and all intervening endorsements
thereon, endorsed on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied) to the order of
"▇▇▇▇▇ Fargo Bank, National Association, as trustee for the registered
holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2007-CD4" or in blank, (or a lost note
affidavit and indemnity with a copy of such Mortgage Note attached
thereto);
(y) an executed copy of the related Co-Lender Agreement;
and
(z) an executed copy of the related Outside Servicing
Agreement (or, if not delivered on the Closing Date, within five (5)
Business Days of such Outside Servicing Agreement being duly delivered and
becoming effective).
The Seller hereby further represents and warrants that with respect
to the Outside Serviced Trust Mortgage Loans, it has delivered to the Outside
Trustee the documents constituting the "mortgage file" within the meaning of the
related Outside Servicing Agreement in connection with its sale of one or more
of the related Non-Trust Mortgage Loans to the depositor for the commercial
mortgage securitization transaction to which such Outside Servicing Agreement
relates.
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
the other Crossed Loan(s) in such Crossed Group, to the extent that such same
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document is also required to be part of the Mortgage File for such other Crossed
Loan(s) in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans), promptly (and
in any event, as to any such Mortgage Loan, within 90 days following the later
of (i) the Closing Date and (ii) the delivery of the related Mortgage(s),
Assignment(s) of Leases, recordable documents, and UCC Financing Statements to
the Trustee) complete (if and to the extent necessary) and cause to be submitted
for recording or filing, as the case may be, in favor of the Trustee in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, referred to in Sections 2(c)(iv)(A), (B) and (C) and each assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the recorded
original of each such assignment of recordable documents to be delivered to the
Trustee or its designee following recording, and shall cause the file copy of
each such UCC Financing Statement to be delivered to the Trustee or its designee
following filing; provided that in those instances where the public recording
office retains the original assignment of Mortgage or assignment of Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain therefrom a
certified copy of the recorded original, which shall be delivered to the Trustee
or its designee. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause to be prepared a substitute therefor or
cure such defect, as the case may be, and thereafter cause the same to be duly
recorded or filed, as appropriate. The Seller shall be responsible for the
out-of-pocket costs and expenses of the Recording/Filing Agent in connection
with its performance of the recording, filing and delivery obligations
contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications
and internal correspondence, credit underwriting or due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan (other than an Outside
Serviced Trust Mortgage Loan) and that are not required to be part of the
Mortgage File in accordance with the definition thereof (including, without
limitation, any original letters of credit relating to any Mortgage Loan); and
(ii) within two (2) Business Days after the Closing Date, any and all escrow
amounts and reserve amounts in the Seller's possession or under its control that
relate to the Mortgage Loans (other than an Outside Serviced Trust Mortgage
Loan).
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which
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secure any Mortgage Loan (other than an Outside Serviced Trust Mortgage Loan).
Without limiting the generality of the foregoing, if a draw upon a letter of
credit is required before its transfer to the Trust Fund can be completed, the
Seller shall draw upon such letter of credit for the benefit of the Trust
pursuant to written instructions from the applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly
existing and in good standing under the laws of the State of Maryland and
possesses all requisite authority, power, licenses, permits and franchises
to carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and by public policy
considerations underlying the securities laws, to the extent that such
public policy considerations limit the enforceability of the provisions of
this Agreement which purport to provide indemnification from liabilities
under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's reasonable and
good faith judgment, materially and adversely affect the financial
condition or the operations of the Seller or its properties (taken as a
whole) or have consequences that would materially and adversely affect its
performance hereunder;
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(v) The Seller is not a party to or bound by any
agreement or instrument or subject to any other corporate restriction or
any judgment, order, writ, injunction, decree, law or regulation that
would, in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or that requires the consent of any third person to
the execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions involving the
Seller contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) For purposes of accounting under generally
accepted accounting principles ("GAAP"), and for federal income tax
purposes, the Seller will report the transfer of the Mortgage Loans to the
Purchaser as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration contemplated by this Agreement. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser will
constitute at least reasonably equivalent value and fair consideration for
the Mortgage Loans. The Seller will be solvent at all relevant times prior
to, and will not be rendered insolvent by, the sale of the Mortgage Loans
to the Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan other than the ACS Loans, for the
benefit of the Purchaser, which representations and warranties are subject to
the exceptions set forth on Schedules III and IV. References in this Agreement
to "Breach" mean a breach of any such representations and warranties made
pursuant to this Section 3(b) with respect to any Mortgage Loan. A copy of the
ACS Mortgage Loan Purchase Agreement is attached hereto as Annex B.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by
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the related recording office) cannot be cured within such 90-day period, (i)
repurchase the affected Mortgage Loan at the applicable Purchase Price not later
than the end of such 90-day period, or (ii) substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan (other than the One World
Financial Center Mortgage Loan, for which no substitution is permitted) not
later than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the applicable Master Servicer for
deposit into its Collection Account, any Substitution Shortfall Amount in
connection therewith; provided that, if a Document Defect or Breach is capable
of being cured but not within such 90-day period and the Seller has commenced
and is diligently proceeding with the cure of such Document Defect or Breach
within such 90-day period, then unless such Document Defect or Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have
an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute for the related Mortgage Loan); and provided, further,
that with respect to such additional 90-day period the Seller shall have
delivered an officer's certificate to the Trustee setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided, further, that if the cure of any
Document Defect or Breach would require an expenditure on the part of the Seller
in excess of $10,000, then the Seller may, at its option, within the time period
provided above, elect to purchase or replace the affected Mortgage Loan in
accordance with this Section 3 without attempting to cure such Document Defect
or Breach, as the case may be. For a period of two years from the Closing Date,
so long as there remains any Mortgage File relating to a Mortgage Loan as to
which there is an uncured Document Defect that, to the Seller's knowledge,
existed as of the Closing Date, and that materially and adversely affects the
value of the applicable Mortgage Loan or the interests of the Certificateholders
therein, the Seller shall provide the officer's certificate to the Trustee
described above as to the reasons such Document Defect remains uncured and as to
the actions being taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of
9
or substitution for the affected Crossed Loan only, including, without
limitation, any modification required with respect to such repurchase or
substitution, shall not cause an Adverse REMIC Event; and (z) the repurchase of
or substitution for the affected Crossed Loan only shall satisfy all other
criteria for repurchase or substitution, as applicable, of Mortgage Loans set
forth herein or in the Pooling and Servicing Agreement. If the conditions set
forth in clauses (x), (y) and (z) of the prior sentence are satisfied, the
Seller may elect either to repurchase or substitute for only the affected
Crossed Loan as to which the related Document Defect or Breach exists or to
repurchase or substitute for all of the Crossed Loans in the related Crossed
Group. The Seller shall be responsible for the cost of any Appraisal required to
be obtained by the applicable Master Servicer to determine if the Crossed Loan
Repurchase Criteria have been satisfied, so long as the scope and cost of such
Appraisal has been approved by the Seller (such approval not to be unreasonably
withheld). To the extent that the Seller is required to purchase or substitute
for a Crossed Loan hereunder in the manner prescribed above while the Purchaser
continues to hold any other Crossed Loans in such Crossed Group, neither the
Seller nor the Purchaser shall enforce any remedies against the other's Primary
Collateral, but each is permitted to exercise remedies against the Primary
Collateral securing its respective Crossed Loans, including, with respect to the
Purchaser, the Primary Collateral securing the Crossed Loans still held by the
Purchaser, so long as such exercise does not materially impair the ability of
the other party to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document Defect or Breach
shall materially and adversely affect the value of the related Mortgage Loan or
the interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
10
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master Servicer and the
Special Servicer shall release to the Seller any Escrow Payments and Reserve
Funds held by it in respect of such repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely
11
affect the ability of the Purchaser to perform its obligations under this
Agreement or that requires the consent of any third person to the execution of
this Agreement or the performance by the Purchaser of its obligations under this
Agreement (except to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a breach of, or constitutes or will constitute a default under (i) any term
or provision of the Purchaser's certificate of incorporation or bylaws, (ii) any
term or provision of any material agreement, contract, instrument or indenture,
to which the Purchaser is a party or by which the Purchaser is bound, or (iii)
any law, rule, regulation, order, judgment, writ, injunction or decree of any
court or governmental authority having jurisdiction over the Purchaser or its
assets, which default might have consequences that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the
condition (financial or other) or operations of the Purchaser or its properties
or have consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the validity of this Agreement or any action taken in
connection with the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser to enter into
and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
12
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to CCMSI, the Seller, the Dealers and their respective counsel in
their reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable Master
Servicer, respectively, all documents represented to have been or required to be
delivered to the Trustee and such Master Servicer on or before the Closing Date
pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller and the Purchaser shall each have the
ability to comply with all terms and conditions and perform all duties and
obligations required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) The Underwriters and Initial Purchasers shall have received
letters from an independent accounting firm reasonably acceptable to CCMSI and
the Seller in form satisfactory to CCMSI, relating to certain information
regarding the Mortgage Loans and Certificates as set forth in the Prospectus,
the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to the effect
that: (i) the representations and warranties of the Seller in this Agreement and
the Indemnification Agreement (other than with respect to the ACS Loans) are
true and correct in all material respects at and as of the Closing Date with the
same effect as
13
if made on such date, subject, in the case of the representations and warranties
made by the Seller pursuant to Section 3(b) of this Agreement, to the exceptions
to such representations and warranties set forth in Schedules III and IV to this
Agreement; and (ii) the Seller has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part that are required
under this Agreement to be performed or satisfied at or prior to the Closing
Date;
(c) An officer's certificate from the Seller, dated the Closing
Date, and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) True and complete copies of the certificate of incorporation
and by-laws of the Seller (as certified to by the Secretary or an assistant
secretary of the Seller), and a certificate of good standing of the Seller
issued by the State of Maryland not earlier than thirty (30) days prior to the
Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the Dealers and
the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies;
(f) Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage Loans by the
Seller to the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
reasonably satisfactory to the Seller and its counsel, dated the Closing Date
and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Seller Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser
14
and the Seller with respect to numerical information in respect of the Mortgage
Loans, the Other Mortgage Loans and the Certificates included in the Prospectus,
the Memorandum and other customary offering materials, including the cost of
obtaining any "comfort letters" with respect to such items; (vii) the reasonable
out-of-pocket costs and expenses in connection with the qualification or
exemption of the Certificates under state securities or "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel in
connection therewith, in connection with the preparation of any "Blue Sky"
survey and in connection with any determination of the eligibility of the
Certificates for investment by institutional investors and the preparation of
any legal investment survey; (viii) the expenses of printing any such "Blue Sky"
survey and legal investment survey; and (ix) the reasonable fees and
disbursements of counsel to the Dealers. All other costs and expenses in
connection with the transactions contemplated hereunder shall be borne by the
party incurring such expense.
SECTION 8. Grant of a Security Interest. It is the express intent
of the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be a perfected security interest of first priority under applicable law and will
be maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement, and in connection therewith the Seller authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code financing
statements.
15
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
16
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(d)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with accountants designated by CCMSI and reasonably acceptable to the Seller in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a Person's
"knowledge", such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
17
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
GACC MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
German American Capital Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
A-1
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and
the interest (exclusive of any default interest, late charges or
prepayment premiums) contracted for thereunder, complied in all material
respects with, or was exempt from, all requirements of federal, state or
local law relating to the origination of such Mortgage Loan, including
those pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application
of any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no provision limiting the right or ability of the Seller to
assign, transfer and convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there is no
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valid offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each case,
with respect to the enforceability of any provisions requiring the payment
of default interest, late fees, Additional Interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Trustee constitutes the legal,
valid and binding assignment from the Seller, except as such enforcement
may be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage Loan is
part of a Loan Combination, the lien of the Mortgage for the related
Non-Trust Loan(s). Except with respect to cross-collateralized and
cross-defaulted Mortgage Loans and Mortgage Loans that are part of a Loan
Combination, there are no mortgage loans that are senior or pari passu in
right of payment with the subject Mortgage Loan that are secured by the
related Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned
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by a Mortgagor and located on the related Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing of UCC Financing Statements, and the
Mortgages, security agreements, chattel mortgages or equivalent documents
related to and delivered in connection with the related Mortgage Loan
establish and create a valid and enforceable lien and security interest on
such items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of the foregoing, no representation
is made as to the perfection of any security interest in rents or other
personal property to the extent that possession or control of such items
or actions other than the filing of UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with, in the case of taxes and governmental
assessments not presently due and payable, future escrow payments required
to be made pursuant to the related Mortgage Loan documents) to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage loans by
the Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would materially and adversely affect the
value of such Mortgaged Property as security for the Mortgage Loan, and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Loan Combination, in the original
(aggregate, if applicable) principal amount of the other mortgage loan(s)
constituting the related Loan Combination) after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA
lender's title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable in connection with the assignment of the related
Mortgage Note without consent of the insurer and will inure to the benefit
of the Trustee as mortgagee of record; such policy is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no material claims have
been made under such policy and the Seller has not done
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anything, by act or omission, and the Seller has no actual knowledge of
any matter, which would impair or diminish the coverage of such policy.
The insurer issuing such policy is either (x) a nationally recognized
title insurance company or (y) qualified to do business in the
jurisdiction in which the related Mortgaged Property is located to the
extent required; and such policy contains no material exclusions for, or
affirmatively insures (except for any Mortgaged Property located in a
jurisdiction where such insurance is not available) (a) access to a public
road and (b) against any loss due to encroachments of any material portion
of the improvements thereon.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the original
principal balance of the Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting
the related Loan Combination), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such
Mortgaged Property is operated as a manufactured housing community, such
Mortgaged Property is also covered by business interruption or rental loss
insurance, in an amount at least equal to twelve (12) months of operations
of the related Mortgaged Property (or in the case of a Mortgaged Property
without any elevator, six (6) months); and as of the Cut-off Date, to the
actual knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent by a commercial and multifamily mortgage lending
institution with respect to a similar mortgage loan and which are set
forth in the related Mortgage, any insurance proceeds in respect of a
casualty loss are required to be applied either (i) to the repair or
restoration of all or part of the related Mortgaged Property or (ii) to
the reduction of the outstanding principal balance of the Mortgage Loan,
subject in either case to requirements with respect to leases at the
related Mortgaged Property and to other exceptions customarily provided
for by prudent commercial and multifamily mortgage lending institutions
for similar loans. The Mortgaged Property is also covered by comprehensive
general liability insurance against claims for personal and bodily injury,
death or property damage occurring on, in or about the related Mortgaged
Property, in an amount customarily required by prudent commercial and
multifamily mortgage lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to
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non-payment, ten (10) days prior written notice to the Mortgagee) or such
lesser period as prescribed by applicable law. Each Mortgage requires that
the Mortgagor maintain insurance as described above or permits the
Mortgagee to require insurance as described above, and permits the
Mortgagee to purchase such insurance at the Mortgagor's expense if
Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to Treasury
regulations Sections 1.860-G(2)(a)(3) and 1.860G(2)(f)(2)), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to
I-5
80% of the principal amount of such Mortgage Loan (i) as of the Testing
Date, or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in real
property shall first be reduced by (1) the amount of any lien on such
interest in real property that is senior to such Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (B) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (1)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (2)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred.
19. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting
firm independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such environmental
site assessments, updates and transaction screens, and the Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition (REC), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by the American Society for
Testing and Materials (ASTM), with respect to the related Mortgaged
Property and the same have not been subsequently addressed in all material
respects, then one or more of the following is true: (i) an escrow greater
than 100% of the amount identified as necessary by the environmental
consulting firm to address the REC is held by the Seller for purposes of
effecting same (and the related Mortgagor has covenanted in the Mortgage
Loan documents to perform such work); (ii) the related Mortgagor or other
responsible party having financial resources reasonably estimated to be
adequate to address the REC is required to take such actions or is liable
for the failure to take such actions, if any, with respect to such
circumstances or conditions as have been required by the applicable
governmental regulatory authority or any environmental law or regulation;
(iii) the related Mortgagor has provided a lender's environmental
insurance policy (in which case such Mortgage Loan is identified on Annex
A to this Schedule I); (iv) an operations and maintenance plan has been or
will be implemented; (v) such conditions or circumstances were
investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation; or (vi) the Mortgagor or other responsible party has obtained
a no further action letter or other evidence that governmental authorities
have no intention of taking any action or requiring any action in respect
of the REC. All environmental assessments or updates that were in the
possession of the Seller and that relate to a Mortgaged Property insured
I-6
by an environmental insurance policy have been delivered to or disclosed
to the environmental insurance carrier issuing such policy prior to the
issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains no
equity participation by the Seller or shared appreciation feature and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or, other
than the ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest in the related Mortgagor.
23. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property, each related Mortgage or loan agreement contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the requirements
of the Mortgage or loan agreement, (a) the related Mortgaged Property, or
any controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death or
incapacity of a member, general partner or shareholder of the related
Mortgagor, transfers of less than a controlling interest in a mortgagor,
issuance of non-controlling new equity interests, transfers among existing
members, partners or shareholders in the Mortgagor or an affiliate
thereof, transfers among affiliated Mortgagors with respect to
cross-collateralized and cross-defaulted Mortgage Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting
the requirements of the Mortgage Loan, such as pledges of ownership
interest that do not result in a change of control) or a substitution or
release of collateral is effected other than in the circumstances
specified in representation (26) below, or (b) the related Mortgaged
Property is encumbered in connection with subordinate financing by a lien
or security interest against the related Mortgaged Property, other than
any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior
to the related origination date.
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26. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage
in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, and, except with respect to Mortgage Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the
Mortgage Loan, (c) where release is conditional upon the satisfaction of
certain underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged Property
or the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in compliance with
REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will not have
a material adverse affect on the underwritten value of the security for
the Mortgage Loan or that were not allocated any value in the underwriting
during the origination of the Mortgage Loan, the terms of the related
Mortgage do not provide for release of any portion of the Mortgaged
Property from the lien of the Mortgage except in consideration of payment
in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof
which (a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements which
were included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the Mortgage
Loan lies outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon
such Mortgaged Property to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
title insurance).
I-8
29. With respect to at least 95% of the Mortgage Loans (by
principal balance) having a Cut-off Date Balance in excess of 1% of the
Initial Pool Balance, the related Mortgagor has covenanted in its
organizational documents and/or the Mortgage Loan documents to own no
significant asset other than the related Mortgaged Property or Mortgaged
Properties, as applicable, and assets incidental to its ownership and
operation of such Mortgaged Property, and to hold itself out as being a
legal entity, separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received from
any Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect such Mortgagor's ability to pay principal, interest or any other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has either been properly designated and serving under such Mortgage or may
be substituted in accordance with the Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is
in full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the
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Mortgage Loan, the related Mortgagor was in possession of all material
licenses, permits and authorizations then required for use of the related
Mortgaged Property, and, as of the Cut-off Date, the Seller has no actual
knowledge that the related Mortgagor was not in possession of such
licenses, permits and authorizations.
37. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan
have been in all material respects legal and the servicing and collection
practices used by the Seller or its affiliates with respect to the
Mortgage Loan have met customary industry standards for servicing of
commercial mortgage loans for conduit loan programs.
38. Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
39. The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related Mortgagor accepts responsibility for fraud and/or other
intentional material misrepresentation. The Mortgage Loan documents for
each Mortgage Loan provide that the related Mortgagor shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
Mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two (2) years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or, in
the case of a partial defeasance, in an amount sufficient to make all
scheduled payments with respect to the defeased portion of such Mortgage
Loan). In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees,
I-10
accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (ii) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (iii) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged Property
to be encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of money
junior to or of equal priority with, or superior to, the lien of the
related Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmen's liens that become payable after the
Cut-off Date of the related Mortgage Loan).
I-11
ANNEX A (TO SCHEDULE I)
MORTGAGE LOANS AS TO WHICH THE RELATED MORTGAGOR OBTAINED
A LENDER'S ENVIRONMENTAL INSURANCE POLICY
None.
I-12
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be
duly recorded no later than thirty (30) days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a
deed in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period.
4. To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than payments due
but not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and
the lessee requires the lessor to give notice of any default by the lessee
to the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless
a copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground lease) to cure any curable default under such
Ground Lease before the lessor thereunder may terminate such Ground Lease.
II-1
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than
twenty (20) years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution), or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
Representation numbers referred to below relate to the corresponding
Mortgage Loan representations and warranties set forth in Exhibit C to the
Mortgage Loan Purchase Agreement for GACC.
Note: The Mortgage Loans known as Cresmont Loft Apartments,
identified on Annex A-1 by ID # 177, has an Indemnity Deed of Trust structure.
The borrower under such Mortgage Loan executed and delivered the related note to
the lender and is obligated to make payments thereunder. The property owner for
such Mortgage Loan has guaranteed all amounts payable by the borrower under the
related note, which guaranty is secured by an indemnity deed of trust in favor
of the lender. With respect to the above referenced Mortgage Loan, certain of
the representations regarding the borrower refer to the property owner of the
related Mortgaged Property as well.
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 13:
-------------------------------------------------------------------------------------------------------------------------------
Various Various The Mortgage Loan documents generally require property insurance against
loss customarily included under an "all risk" property insurance policy but
certain "all risk" policies do not specifically cover lightning, windstorm,
hail, explosion, riot, riot attending a strike, civil commotion, aircraft,
vehicles and smoke and/or may specifically exclude windstorm or other such
coverage.
Certain of the Mortgage Loan documents may limit terrorism insurance coverage
to the extent such coverage is commercially available for similarly situated
properties and/or on commercially reasonable terms. Certain of the Mortgage
Loan documents provide limits on the insurance premium amount the related
borrower is required to spend for terrorism insurance. Certain of the loan
documents do not specifically require terrorism insurance be maintained.
-------------------------------------------------------------------------------------------------------------------------------
7 Four Seasons Resort Maui The existing windstorm/named storm/hurricane insurance (under a blanket
policy) is capped at $100,000,000. The total insurable value (buildings,
contents and 12 months of business interruption insurance) is approximately
$200,000,000. Under the Mortgage Loan documents, the borrower is required
to maintain (i) if under a blanket policy, windstorm coverage in an amount
equal to at least $100,000,000, and (ii) if under a stand alone policy,
windstorm in an amount equal to the greater of (1) 50,000,000 and (2) ten
times the product of (A) the probably maximum loss (as determined pursuant
to a windstorm study forecasting the expected damage from windstorms over a
forecast period), and (B) 100% of the replacement cost of the
-------------------------------------------------------------------------------------------------------------------------------
III-1
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
improvements and building equipment (but in no event more than $75,000,000 of
coverage).
-------------------------------------------------------------------------------------------------------------------------------
21 One East Delaware The Mortgage Loan documents permit terrorism insurance to be excluded from
the general liability insurance provided. The guarantor has guaranteed
against any loss resulting from terrorism insurance being excluded.
-------------------------------------------------------------------------------------------------------------------------------
10 DB Americold Portfolio The deductible for windstorm and flood insurance is capped at 5% of the
property replacement cost or at prevailing market deductibles.
-------------------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Apartments The Mortgage Loan documents provide the borrower with 60 days after loan
closing to obtain windstorm coverage in the amount of $20MM (of which up to
$10MM may be under blanket coverage). The borrower escrowed $200,000 at
closing, to be released to the borrower once coverage is put in place.. The
Mortgage Loan documents provide that if windstorm insurance becomes
available at commercially reasonable rates, the borrower is required to
obtain full coverage. The guaranty provides that the loan sponsor is
responsible for all losses due to windstorm insurance not covered by such
insurance.
The Mortgage Loan documents provide that notwithstanding any conflicting
requirements in such documents, Citizens Property Insurance Company shall be
an acceptable insurance provider.
-------------------------------------------------------------------------------------------------------------------------------
31 Westbury at Lake Brandon At Mortgage Loan closing, the Mortgaged Property was fully insured against
Apartments non-named storms but with regard to named storms, the Mortgaged Property is
covered under a $5 million blanket policy maintained by the sponsor that
covers the Mortgaged Property and three other properties (including Victoria
Place Apartments). The blanket policy has a $500,000 deductible. The borrower
is obligated to obtain full windstorm coverage (with a maximum deductible of
up to 5% of the property replacement cost) within 60 days of Mortgage Loan
closing. In addition, at Mortgage Loan closing, the borrower escrowed
$200,000 with the lender, which amount may be (i) released to the borrower
once the required insurance is maintained or (ii) used by the lender to
purchase the required insurance on borrower's behalf. The Mortgage Loan
documents provide that notwithstanding any conflicting requirements in such
documents, Citizens Property Insurance Company shall be an acceptable
insurance provider.
-------------------------------------------------------------------------------------------------------------------------------
35 Locust on the Park The borrower has $350,000 of FEMA flood coverage and $5,000,000 of excess
coverage. The loan sponsor provided a guaranty to the lender covering any
loss related to the failure of the borrower to maintain the full excess
coverage.
-------------------------------------------------------------------------------------------------------------------------------
III-2
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
149 ▇▇▇▇▇▇▇ Building The Mortgaged Property is located in a flood zone requiring insurance;
however, the elevation certificate provided at closing showed that the
building may be constructed at an elevation that would permit the owner to
obtain a letter of map amendment ("LOMA") to change designation for the
building to a zone not requiring flood insurance. Because the LOMA process
takes time, at closing borrower had obtained the maximum flood insurance
available under the national flood insurance program ($500,000) and
$1,000,000 in excess coverage under a blanket policy. Within 120 days of
the closing of the Mortgage Loan, the borrower is required to provide
lender with evidence of LOMA or obtain full excess flood coverage. The
sponsor provided a payment guaranty that will cover any loss not covered by
the flood insurance that is incurred as a result of a flood.
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 23:
-------------------------------------------------------------------------------------------------------------------------------
Various With respect to certain of the Mortgage Loans, the Mortgage Loan documents
permit, without lender consent, (a) the sale of the Mortgaged Property and
assumption of the Mortgage Loan upon the satisfaction of certain conditions
in the Mortgage Loan documents (b) transfers (i) of a controlling interest
in the borrower to certain pre-approved entities or to an entity meeting
the "qualified transferee" (or similar) definition under the Mortgage Loan
documents or to any entity satisfying certain other criteria (or subject to
conditions) specified in the related Mortgage Loan documents, (ii) that
result in no change in the managerial or day-to-day control of the
borrower, (iii) among existing principals, even if there is a change
control, (iv) that accommodate a 1031 exchange or reverse 1031 exchange, or
(v) with respect to Mortgage Loans to tenant-in-common borrowers, transfers
among and to additional tenant-in-common borrowers.
The Mortgage Loans generally permit the related borrower to incur debt in the
ordinary course of business, including debt secured by a lien on individual
items of equipment.
Certain Mortgage Loans provide for management fees and, in some cases, an
additional administrative asset management fee. All such fees are generally
subordinated to the related Mortgage Loan.
-------------------------------------------------------------------------------------------------------------------------------
7 Four Seasons Resort Maui The Mortgage Loan documents permit borrower's parent to incur debt from a
borrower affiliate (including any holder of direct or indirect equity
interest in the borrower's parent) (a "Member Lender ") under the
following conditions: (i) such Member Lender also makes an equity
investment in the parent or a direct or indirect owner of the parent, (ii)
the balance of the member loan(s) may not be greater than $132.0 million
and (iii) there may not be more than
-------------------------------------------------------------------------------------------------------------------------------
III-3
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
three Member Lenders. In addition, the borrower's parent, or any holder of
direct or indirect equity interest in the borrower, may obtain common and/or
preferred equity investment from a third party investor provided: (i) unless
acceptable to lender, such preferred equity investor may not have co-control
rights with the mortgage loan sponsor with respect to borrower and the Four
Seasons Resort Maui Property and may only have rights with respect to certain
major decisions as set forth in the Mortgage Loan documents and (ii) the
aggregate funded amount of all common and/or permitted equity investments and
all permitted member loans is not at any time greater than $132.0 million.
Further, provided no event of default has occurred and is continuing, a
single purpose entity having a direct or indirect 100% ownership interest in
borrower's parent may incur indebtedness in the form of one or more mezzanine
loans, subject to certain conditions including and without limitation, (i)
the borrower has obtained rating agency approval, (ii) the mezzanine lender
is a qualified lender, as defined by the loan documents, (iii) the borrower
has delivered an appraisal satisfactory to lender and (iv) (a) if there are
no permitted member loans or permitted equity investors and there will not be
in the future, then the combined financing DSCR may not be less than 1.25x
and the combined financing LTV may not exceed 75% or (b) if there are
permitted member loans or permitted equity investors or if the borrower
anticipates that there will be in the future, the combined financing DSCR may
not be less than 1.30x and the combined financing LTV may not exceed 68%.
-------------------------------------------------------------------------------------------------------------------------------
8 Riverton Apartments Equity owners of the borrower incurred $25,000,000 of mezzanine debt
secured by its interest in the borrower. The holder of the mezzanine debt
has entered into an intercreditor agreement ("ICA") with lender.
-------------------------------------------------------------------------------------------------------------------------------
17 Santa Palmia Apartments One of the loan sponsors made mezzanine loans (in an aggregate amount of
$19,000,000) to the other loan sponsors, in each case secured by the
related loan sponsors' interest in the related Santa Palmia Apartments
tenant-in-common borrower and such sponsors' interest in borrowers under
other loans that are not collateral for the trust fund.
The Mortgage Loan documents permit the tenant-in-common borrowers to dissolve
this structure and transfer the Mortgaged Property to a newly formed single
purpose entity. After such transfer, the new SPE is permitted to transfer the
Mortgaged Property to new tenant-in-common borrowers.
-------------------------------------------------------------------------------------------------------------------------------
27 Foxfire Apartments The Mortgage Loan does not provide for the subordination of the affiliated
property management fee.
-------------------------------------------------------------------------------------------------------------------------------
35 Locust on the Park The Mortgage Loan documents permit the pledge of equity interests
-------------------------------------------------------------------------------------------------------------------------------
III-4
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
in the borrower to secure mezzanine debt subject to the satisfaction of
conditions including but not limited to (i) delivery of an acceptable ICA,
(ii) aggregate DSCR is at least 1.20x, and (iii) aggregate LTV ratio is not
more than 80%.
-------------------------------------------------------------------------------------------------------------------------------
43 Top of the Hill Apartments The Mortgage Loan does not provide for the subordination of the affiliated
property management fee.
-------------------------------------------------------------------------------------------------------------------------------
60 One Garret Mountain Plaza The Mortgage Loan documents permit the pledge of equity interests in the
borrower to secure mezzanine debt subject to the satisfaction of conditions
including but not limited to (i) delivery of an acceptable ICA, (ii)
aggregate DSCR is at least 1.20x, and (iii) aggregate LTV ratio is not
more than 80%.
The loan documents permit the transfer of the management of the borrower to a
new managing member without lender consent subject to the satisfaction of
certain conditions, including rating agency confirmation.
-------------------------------------------------------------------------------------------------------------------------------
70 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The Mortgage Loan documents permit the pledge of equity interests in the
borrower to secure mezzanine debt subject to the satisfaction of conditions
including but not limited to (i) the combined DSCR is at least 1.15x, (ii)
the aggregate LTV does not exceed 80%, (iii) delivery of an acceptable ICA
and (iv) the mezzanine lender is an institutional lender as defined in the
Mortgage Loan documents.
-------------------------------------------------------------------------------------------------------------------------------
186 Storage Outlet Gardena The Mortgage Loan documents permit a purchaser of the property who assumes
the loan to incur future mezzanine debt provided, among other things, the
combined DSCR is at least 1.20x, the combined LTV is not more than 80% and
delivery of an acceptable ICA.
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ The Mortgage Loan documents permit the borrower to incur subordinate,
unsecured, short term, non-interest bearing advances from members of the
borrower for operating funds.
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 26:
-------------------------------------------------------------------------------------------------------------------------------
10 DB Americold Portfolio The borrower is permitted to partially defease a portion of the Mortgage
Loan, provided, among other things, (A) delivery of a defeasance collateral
in an amount (the "Release Amount") equal to (i) 105% the first 12.5% of the
portfolio at 105% of the allocated loan amount, (ii) the second 12.5% at 110%
of the allocated loan amount, and (iii) the remaining properties at 115% of
the allocated loan amount, (B) the DSCR after the release is not less than
the greater of (x) the DSCR (for the trailing 12 full calendar months as of
the date immediately preceding the release or (y) the DSCR at loan closing,
provided that in order to satisfy such DSCR conditions, the borrower
-------------------------------------------------------------------------------------------------------------------------------
III-5
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
may defease a portion of the loan in excess of the Release Amount, and (C)
the borrower satisfies the partial defeasance requirements specified in the
related Mortgage Loan documents. In addition, prior to the expiration of the
defeasance lockout period, the borrower has the right to prepay up to 15% of
the Mortgage Loan amount with Yield Maintenance solely to cure a default that
cannot be cured despite borrower's commercially reasonable efforts to do so.
The borrower also is permitted to substitute another property of like kind
and quality provided, among other things, (a) the aggregate allocated loan
amount of the substituted properties do not exceed 20% of the original
principal balance of the whole Mortgage Loan, (b) after giving effect to the
substitution, the DSCR for the loan is not less than the greater of (i) the
DSCR as of the closing date and (ii) the DSCR for the trailing 12 full
calendar months as of the date immediately preceding substitution, provided
that the borrower may defease a portion of the loan to satisfy the DSCR
requirements and (c) (i) the LTV ratio of the substitute property is not
greater than the lesser of the LTV of the substituted property (x) as of the
loan closing date and (y) immediately prior to the substitution or (ii) if
the borrower is unable to satisfy the LTV ratio test set forth in (c) above,
after giving effect to the substitution, such test may be satisfied if the
LTV ratio for all of the individual properties immediately after the
substitution is not greater than the lesser of (i) the loan-to-value ratio as
of the closing date and (ii) the loan-to-value ratio immediately prior to the
substitution.
-------------------------------------------------------------------------------------------------------------------------------
60 One Garret Mountain Plaza The Mortgaged Property and a vacant lot were part of the same legal lot at
loan origination. The borrower mortgaged both parcels as collateral for the
Mortgage Loan and the parcels were cross- collateralized and
cross-defaulted. The properties were legally subdivided after the loan
origination date and prior to the date hereof. Pursuant to the Mortgage
Loan documents, the lender released the vacant parcel from the lien of the
Mortgage and released the cross.
The Mortgaged Property and the vacant lot are still part of the same tax
parcel.
-------------------------------------------------------------------------------------------------------------------------------
222 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ The Mortgage Loan documents permit the release of "air rights" to the
adjacent property owners, subject to the satisfaction of certain
conditions, including that (i) at least 36 months still remain on the
related tenants' lease, (ii) contemporaneous with the release, the
borrower provide defeasance collateral in an amount necessary to make LTV
for the undefeased portion of the Mortgage Loan not more than 65% and (iii)
the related tenant have a lease in place with a term extending at least
five years beyond maturity or the borrower deliver $500,000 into the tenant
improvement/ leasing commission reserve.
-------------------------------------------------------------------------------------------------------------------------------
III-6
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 27:
-------------------------------------------------------------------------------------------------------------------------------
8 Riverton Apartments The Mortgaged Property has certain building code violations. However, the
borrower has over $29 million deposited with the lender in planned
renovation related reserve accounts, which amounts may be used in
connection with any remediation of code violations.
-------------------------------------------------------------------------------------------------------------------------------
21 One East Delaware The Mortgaged Property has certain building code violations. Waterton
Residential Property Fund IX, L.L.C. has guaranteed for any losses incurred
by the lender related to the borrower's failure to correct the outstanding
violations.
-------------------------------------------------------------------------------------------------------------------------------
60 One Garret Mountain Plaza The Mortgaged Property boundaries contain a 225,000 square foot man made
lake with a 138 foot dam. Pursuant to dam safety laws enacted by the State
of New Jersey after the dam was built, tests were performed and several
violations were discovered. The prior owner of the property submitted a
plan to the state of New Jersey that provides for structural reinforcement
of the dam. The plans have been approved and the permit issued. The
borrower plans to commence the repairs in the spring or fall 2007,
depending on when it is considered to be more environmentally responsible
to lower the water level of the lake (which is necessary to perform the
repairs). The borrower escrowed 125% of the cost of repairs with the
lender and agreed to complete the repairs within 12 months of loan closing
(subject to reasonable delays) but not more than 36 months from loan
closing
-------------------------------------------------------------------------------------------------------------------------------
70 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ There are certain building code violations for the Mortgaged Property. The
borrower and guarantors agreed to indemnify the lender for loss resulting
as a result of such violations.
-------------------------------------------------------------------------------------------------------------------------------
85 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ There are certain building code violations for the Mortgaged Property. The
borrower and guarantors agreed to indemnify the lender for loss resulting
as a result of such violations.
The borrower has not obtained updated certificates of occupancy for the uses
in two of the buildings. The guaranty covers any losses resulting from
borrowers failure to obtain updated certificates of occupancy.
-------------------------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ There are certain building code violations for the Mortgaged Property. The
borrower and guarantors agreed to indemnify the lender for loss resulting
as a result of such violations.
-------------------------------------------------------------------------------------------------------------------------------
176 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ There are certain building code violations at the Mortgaged Property. The
borrower and guarantor agreed to indemnify the lender for loss resulting as
a result of such violations.
-------------------------------------------------------------------------------------------------------------------------------
III-7
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
186 Storage Outlet Gardena The borrower has not obtained a final certificate of occupancy ("CO") and
certain additional work is required. The guaranty covers any losses
resulting from borrower's failure to obtain the final CO.
-------------------------------------------------------------------------------------------------------------------------------
240 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ The borrower has not obtained a final CO and certain additional work is
required. The guaranty covers any losses resulting from borrower's failure
to obtain the final CO.
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 31:
-------------------------------------------------------------------------------------------------------------------------------
61 Wiener - Joraleman Street An inquiry was initiated by the State Attorney General of New York ("AG") and
(XV) the New York State Division of Housing and Community Renewal ("DHCR") to
determine whether the sponsor-affiliated management company, Pinnacle Group
NY LLC ("Pinnacle"), had engaged in wrongful practices related to the
computation of rent increases for certain rent-stabilized apartments owned or
managed by Pinnacle. On or about August 29, 2006, AG and DHCR served a
subpoena on Pinnacle seeking certain documents in connection with the
inquiry. On December 18, 2006, AG, DHCR and Pinnacle entered into an
agreement pursuant to which (a) an accounting firm has been engaged to audit
all rents set by Pinnacle between December 2002 and December 2006 for each
rent-stabilized apartment owned or managed by Pinnacle and vacated within
such period; (b) Pinnacle will revise any rents determined to have been
increased above permitted levels and will make restitution to applicable
tenants; and (c) for a period of one year from the date of the agreement, the
auditor will monitor Pinnacle's ongoing compliance with approved procedures
for tracking the costs of renovating apartments and for setting rents on
newly vacated apartments. Subject to compliance with its terms, the agreement
concludes the inquiry brought by AG and DHCR. A similar inquiry was initiated
by the Manhattan District Attorney; Pinnacle has provided any requested
documentation but to date no further action has been taken.
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 34:
-------------------------------------------------------------------------------------------------------------------------------
10 DB AmeriCold Portfolio The deductible for windstorm and flood insurance is capped at 5% of the
property replacement cost or at prevailing market deductibles.
-------------------------------------------------------------------------------------------------------------------------------
35 Locust on the Park The borrower has $350,000 of FEMA flood coverage and $5,000,000 of excess
coverage. The loan sponsor provided a guaranty to the lender covering any
loss related to the failure of the borrower to maintain the full excess
coverage.
-------------------------------------------------------------------------------------------------------------------------------
149 ▇▇▇▇▇▇▇ Building The Mortgaged Property is located in a flood zone requiring insurance;
however, the elevation certificate provided at closing showed that the
building is constructed at an elevation that would
-------------------------------------------------------------------------------------------------------------------------------
III-8
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
permit the owner to obtain a letter of map amendment ("LOMA") to change
designation for the building to a zone not requiring flood insurance. Because
the LOMA process takes time, at closing borrower had obtained the maximum
flood insurance available under the national flood insurance program
($500,000) and $1,000,000 in excess coverage under a blanket policy. Within
120 days of the closing of the Mortgage Loan, the borrower is required to
provide lender with evidence of LOMA or obtain full excess flood coverage.
The sponsor provided a payment guaranty that will cover any loss not covered
by the flood insurance that is incurred as a result of a flood.
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTION TO REPRESENTATION 42:
-------------------------------------------------------------------------------------------------------------------------------
Various Various Certain of the Mortgage Loans provide for the purchase of defeasance
collateral assuming final payment of the Mortgage Loan on the first day of
the open period.
-------------------------------------------------------------------------------------------------------------------------------
III-9
SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
-------------------------------------------------------------------------------------------------------------------------------
ANNEX A
ID# MORTGAGE LOAN EXCEPTION
-------------------------------------------------------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 13:
-------------------------------------------------------------------------------------------------------------------------------
22 60 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Boulevard 2. The ground lease provides that assignment by the ground tenant of its
interest in the ground lease generally requires landlord's consent but such
consent will not be unreasonably withheld or delayed and shall be based on
the financial ability of the proposed assignee to assume the obligations of
the tenant under the lease.
9. Neither the ground lease or the estoppel expressly provides that the
leasehold lender shall be entitled to participate in any casualty settlement
proceedings or to control the disbursement of casualty proceeds.
-------------------------------------------------------------------------------------------------------------------------------
IV-1
ANNEX A
MORTGAGE LOAN SCHEDULE
IV-2
LOAN
LOAN MORTGAGE LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME
-------------------------------------------------------------------------------------------
▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
6 GACC 1 One World Financial Center
7 GACC 1 Four Seasons Resort Maui
8 GACC 2 Riverton Apartments
-------------------------------------------------------------------------------------------
10 GACC 1 DB AmeriCold Portfolio
10.1 1 Atlanta
10.2 1 Clearfield
10.3 1 Nampa
10.4 1 Bettendorf
10.5 1 Russellville
10.6 1 Woodburn
10.7 ▇ ▇▇▇▇▇▇▇▇▇
▇▇.▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇
10.9 1 Connell
10.10 1 Thomasville
10.11 1 ▇▇▇▇▇▇▇
10.12 ▇ ▇▇▇▇▇ ▇▇▇▇▇
10.13 1 Amarillo
10.14 1 Wichita
10.15 1 Boston
10.16 1 Sebree
10.17 1 Turlock
10.18 1 Fort ▇▇▇▇▇
10.19 1 Syracuse
10.20 1 Murfreesboro
-------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ One East Delaware
22 GACC 1 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
24 GACC 2 Victoria Place Apartments
27 GACC 2 Foxfire Apartments
31 GACC 2 Westbury at Lake Brandon Apartments
-------------------------------------------------------------------------------------------
32 GACC 1 Lakewood Industrial Portfolio
32.1 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.2 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.3 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.4 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.5 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.6 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
32.7 1 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
32.8 1 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
32.9 1 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
32.10 1 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
32.11 1 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
32.12 1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------------------------------------------------
35 GACC 2 Locust on the Park
40 GACC 1 Glenborough ▇▇▇▇▇▇▇ Road
43 GACC 2 Top of the Hill
47 GACC 2 Morning View Terrace
48 GACC 1 Highpoint Tower I & II
60 GACC 1 One Garret Mountain Plaza
61 GACC 2 ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Business Center
▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
78 GACC 1 Two ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
85 GACC 1 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
110 GACC 1 Sudley North Business Center Building D
-------------------------------------------------------------------------------------------
121 GACC 1 JQH Hotel Portfolio B-Note
121.1 1 Courtyard by Marriott - Oklahoma
121.2 1 Embassy Suites - Lincoln
121.3 1 Residence Inn by Marriott - South Carolina
121.4 1 Embassy Suites Albuquerque
121.5 1 Renaissance Tulsa Hotel & Convention Center
121.6 1 Sheraton Sioux Falls
-------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
152 GACC ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ 1 Shoppes at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
177 GACC 2 ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇▇
197 GACC 1 24 Hour Fitness
▇▇▇ ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Complex
216 GACC 2 ▇▇▇▇▇▇▇▇▇ Apartments
222 GACC 1 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ 2 Whisperwood Apartments
227 GACC 1 Orangecrest Self Storage
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ I
237 GACC 1 Ashford II
240 GACC 1 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
248 GACC 1 Rite Aid - Vancouver, WA
252 GACC 2 Tukwila Apartments
265 GACC 1 Big Kmart - Clemmons
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
296 GACC 1 Big Kmart - Jacksonville
299 GACC 1 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ 1 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
367 GACC ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Townhomes
379 GACC 1 Loveland Shopping Center
PRESENTED BELOW, SEPARATE FROM THE REST OF THE POOLED MORTGAGED LOANS, IS THE
ANNEX A-1 INFORMATION FOR THE ONE WORLD FINANCIAL CENTER NON-POOLED PORTION,
WHICH IS ASSOCIATED WITH THE CLASS WFC-1, WFC-2 AND WFC-3 CERTIFICATES. THE ONE
WORLD FINANCIAL CENTER NON-POOLED PORTION IS NOT INCLUDED IN THE INITIAL NET
MORTGAGE POOL BALANCE.
6b GACC NAP One World Financial Center (non-pooled portion)
LOAN
NUMBER PROPERTY ADDRESS CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
3 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
6 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
7 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
8 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
10 Various Various Various Various
10.1 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.2 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.3 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.4 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.5 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.6 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.7 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.8 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.9 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.10 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.11 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.12 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.13 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.14 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.15 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.16 ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.17 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.18 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.19 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10.20 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
13 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
17 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
21 ▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
24 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
27 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
31 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
32 Various ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.1 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.2 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.3 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.4 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.5 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.6 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.7 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.8 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.9 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.10 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.11 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
32.12 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
35 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
40 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
43 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
47 439-441, 443-449, 451-455, and ▇▇▇-▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
48 8401 & ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
60 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
61 ▇▇-▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇&▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
62 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and 7701, 7698, and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
63 1015, 1025, 1035, 1045, 1121, 1131, 1141 and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
70 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
78 ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
81 9765-9775 Clairemont ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
85 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
109 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
110 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
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121 Various Various Various Various
121.1 ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
121.2 ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
121.3 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
121.4 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
121.5 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
121.6 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
124 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
149 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
152 17582-17612 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
163 7591 & ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
176 ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
177 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
186 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
197 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
202 3736, 3738, 3744 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
216 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
222 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
223 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
227 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
235 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
237 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
240 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
248 NWC of ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
252 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
265 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
269 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
296 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
299 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
325 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
367 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
379 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
6b
CROSS INTEREST
COLLATER- ADDITIONAL RESERVE
ALIZED MASTER INTEREST MORTGAGE
LOAN CUT-OFF DATE (MORTGAGE SERVICING ARD LOAN RATE AFTER LOAN
NUMBER COUNTY PRINCIPAL BALANCE LOAN GROUP) MORTGAGE RATE FEE RATE (YES/NO)? ARD ARD (YES/NO)?
------------------------------------------------------------------------------------------------------------------------------------
3 Hennepin 306,000,000.00 No 5.7990% 0.0200% No Yes
6 New York 257,000,000.00 No 5.713576% 0.0200% No Yes
7 Maui 250,000,000.00 No 5.7120% 0.0200% No Yes
8 New York 225,000,000.00 No 5.99855556% 0.0200% No Yes
------------------------------------------------------------------------------------------------------------------------------------
10 Various 180,000,000.00 No 5.3960% 0.0200% No Yes
10.1 ▇▇▇▇▇▇
10.2 ▇▇▇▇▇
10.3 Canyon
10.4 ▇▇▇▇▇
10.5 ▇▇▇▇
10.6 ▇▇▇▇▇▇
10.7 Shenandoah
10.8 ▇▇▇▇▇▇▇▇▇▇
10.9 Franklin
10.10 ▇▇▇▇▇▇
10.11 Wood
10.12 Walla Walla
10.13 Potter
10.14 Sedgwick
10.15 Suffolk
10.16 ▇▇▇▇▇▇▇
10.17 Stanislaus
10.18 Sebastian
10.19 Onondaga
10.20 ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
13 ▇▇▇▇▇ 117,000,000.00 No 5.7260% 0.0200% No Yes
17 Santa ▇▇▇▇▇ 78,910,000.00 No 5.7910% 0.0300% No Yes
21 ▇▇▇▇ 63,000,000.00 No 5.6000% 0.0300% No Yes
22 Nassau 54,500,000.00 No 5.7400% 0.0300% No Yes
24 Orange 46,000,000.00 No 5.7300% 0.0300% No Yes
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 42,000,000.00 No 5.5350% 0.0300% No Yes
31 Hillsborough 36,000,000.00 No 6.0260% 0.0300% No Yes
------------------------------------------------------------------------------------------------------------------------------------
32 Ocean 36,000,000.00 No 6.1730% 0.0300% No Yes
32.1 Ocean
32.2 Ocean
32.3 Ocean
32.4 Ocean
32.5 Ocean
32.6 Ocean
32.7 Ocean
32.8 Ocean
32.9 Ocean
32.10 Ocean
32.11 Ocean
32.12 Ocean
------------------------------------------------------------------------------------------------------------------------------------
35 Philadelphia 32,600,000.00 No 5.8100% 0.0300% No Yes
40 San Mateo 29,510,000.00 No 5.6170% 0.0200% No Yes
43 New Castle 26,500,000.00 No 6.0300% 0.0300% No Yes
47 San Diego 25,400,000.00 No 5.6350% 0.0300% No Yes
48 Bexar 25,280,000.00 No 6.0250% 0.0300% No Yes
60 Passaic 19,500,000.00 No 5.6600% 0.0300% No Yes
61 Kings 19,000,000.00 No 5.8100% 0.0300% No Yes
62 Prince ▇▇▇▇▇▇▇ 18,500,000.00 No 5.7500% 0.0300% No Yes
63 San Diego 18,200,000.00 No 5.6350% 0.0300% No Yes
70 New York 16,500,000.00 No 5.8500% 0.0300% No Yes
78 ▇▇▇▇▇▇ 14,900,000.00 No 5.7580% 0.0300% No Yes
81 San Diego 14,300,000.00 No 5.6170% 0.0200% No Yes
85 Kings 13,200,000.00 No 6.0600% 0.0300% No Yes
▇▇▇ ▇▇▇▇▇▇▇ 10,400,000.00 No 5.7500% 0.0300% No Yes
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 10,400,000.00 No 5.7500% 0.0300% No Yes
------------------------------------------------------------------------------------------------------------------------------------
121 Various 9,888,519.24 No 7.5702% 0.0200% No Yes
121.1 Oklahoma
121.2 Lancaster
121.3 Charleston
121.4 Bernalillo
121.5 Tulsa
121.6 Minnehaha
------------------------------------------------------------------------------------------------------------------------------------
124 Somerset 9,500,000.00 No 5.6170% 0.0200% No Yes
149 ▇▇▇▇▇▇ 8,200,000.00 No 5.7500% 0.0300% No Yes
152 Orange 8,000,000.00 No 5.8290% 0.0300% No Yes
163 ▇▇▇▇▇ 7,400,000.00 No 5.9140% 0.0300% No Yes
176 New York 6,500,000.00 No 6.0500% 0.0300% No Yes
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 6,500,000.00 No 6.0300% 0.0300% No Yes
186 Los Angeles 6,000,000.00 No 5.6000% 0.0300% No Yes
197 Tarrant 5,407,382.59 No 8.7600% 0.0200% No Yes
202 Contra Costa 5,220,706.17 No 7.3400% 0.0200% No Yes
216 King 4,800,000.00 No 5.5370% 0.0300% No Yes
222 New York 4,600,000.00 No 5.9000% 0.0300% No Yes
223 Dauphin 4,600,000.00 No 5.0600% 0.0200% No Yes
▇▇▇ ▇▇▇▇▇▇▇▇▇ 4,500,000.00 No 5.6790% 0.0300% No Yes
▇▇▇ ▇▇▇▇▇▇▇ 4,342,395.33 No 7.3640% 0.0200% No Yes
237 ▇▇▇▇▇▇ 4,300,000.00 No 5.7500% 0.0300% No Yes
240 Orange 4,250,000.00 No 5.8970% 0.0700% No Yes
248 ▇▇▇▇▇ 4,050,000.00 No 6.8500% 0.0200% No Yes
252 King 4,000,000.00 No 5.7200% 0.0800% No Yes
265 Forsyth 3,628,649.74 No 8.8700% 0.0200% No Yes
269 Guilford 3,500,000.00 No 5.9000% 0.0300% No Yes
296 ▇▇▇▇▇ 2,965,892.37 No 9.0000% 0.0200% No Yes
299 Suffolk 2,850,000.00 No 5.7900% 0.0300% No Yes
325 ▇▇▇▇▇ 2,277,629.61 No 7.8610% 0.0200% No Yes
367 ▇▇▇▇▇▇ 1,288,883.01 No 6.4800% 0.0200% No Yes
379 Larimer 1,100,000.00 No 6.0560% 0.0200% No Yes
6b 40,500,000.00 No 5.713576% 0.0199%
ORIGINAL REMAINING
PERIODIC PAYMENT TERM TO TERM TO
LOAN GRACE ON FIRST DUE DATE MATURITY / ARD MATURITY / ARD
NUMBER LOAN TYPE PERIOD STATED MATURITY DATE AFTER CLOSING (MONTHS) (MONTHS)
----------------------------------------------------------------------------------------------------------------------------------
3 Interest Only 0 12/01/16 1,528,036.50 120 117
6 Interest Only 5 02/01/17 1,264,446.11 120 119
7 Interest Only 0 01/01/14 1,229,666.67 84 82
8 Interest Only 5 01/01/12 1,162,220.14 60 58
----------------------------------------------------------------------------------------------------------------------------------
10 Interest Only 0 02/01/16 836,380.00 109 107
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
----------------------------------------------------------------------------------------------------------------------------------
13 Interest Only 5 01/01/12 576,894.50 60 58
17 Interest Only 5 02/01/17 393,500.06 120 119
21 Interest Only 5 01/01/17 303,800.00 120 118
22 Interest Only 5 02/01/17 269,381.39 120 119
24 Partial IO/Balloon 5 03/01/17 226,971.67 120 120
27 Interest Only 5 02/01/12 200,182.50 60 59
31 Partial IO/Balloon 5 03/01/17 186,806.00 120 120
----------------------------------------------------------------------------------------------------------------------------------
32 Partial IO/Balloon 5 02/01/12 191,363.00 60 59
32.1
32.2
32.3
32.4
32.5
32.6
32.7
32.8
32.9
32.10
32.11
32.12
----------------------------------------------------------------------------------------------------------------------------------
35 Partial IO/Balloon 5 01/01/17 163,099.61 120 118
40 Interest Only 5 12/01/11 142,735.77 60 57
43 Partial IO/Balloon 5 02/01/17 137,601.25 120 119
47 Interest Only 5 02/01/17 123,249.97 120 119
48 Partial IO/Balloon 5 02/01/17 131,157.56 120 119
60 Partial IO/Balloon 5 01/01/17 95,040.83 120 118
61 Interest Only 5 01/01/12 95,058.06 60 58
62 Partial IO/Balloon 5 04/01/17 91,600.69 (Note 4) 121 121
63 Interest Only 5 02/01/17 88,312.97 120 119
70 Partial IO/Balloon 5 03/01/17 83,118.75 120 120
78 Partial IO/Balloon 5 02/01/17 73,878.34 120 119
81 Interest Only 5 12/01/11 69,167.11 60 57
85 Interest Only 5 03/01/12 68,882.00 60 60
109 Partial IO/Balloon 5 04/01/17 51,494.44 (Note 4) 121 121
110 Partial IO/Balloon 5 04/01/17 51,494.44 (Note 4) 121 121
----------------------------------------------------------------------------------------------------------------------------------
121 Balloon (Note 1) 05/11/16 (Note 5)(Note 6) 73,557.74 (Note 7) 121 (Note 5)(Note 6) 110
121.1
121.2
121.3
121.4
121.5
121.6
----------------------------------------------------------------------------------------------------------------------------------
124 Interest Only 5 12/01/11 45,950.18 60 57
149 Partial IO/Balloon 5 04/01/17 40,601.39 (Note 4) 121 121
152 Partial IO/Balloon 5 03/01/17 40,155.33 120 120
163 Partial IO/Balloon 5 02/01/17 37,685.32 120 119
176 Interest Only 5 03/01/12 33,863.19 60 60
177 Partial IO/Balloon 5 02/01/17 33,751.25 120 119
186 Partial IO/Balloon 5 01/01/17 28,933.33 120 118
197 Fully Amortizing 0 02/10/19 (Note 5)(Note 6) 61,294.52 253 (Note 5)(Note 6) 143
202 Balloon 0 04/01/11 38,241.47 120 49
216 Partial IO/Balloon 5 01/01/17 22,886.27 120 118
222 Interest Only 5 01/01/17 23,370.56 120 118
223 Partial IO/Balloon 5 09/01/15 20,043.22 120 102
227 Partial IO/Balloon 5 02/01/17 22,006.13 120 119
235 Balloon 5 08/01/11 31,736.58 120 53
237 Partial IO/Balloon 5 03/01/17 21,290.97 120 120
240 Partial IO/Balloon 5 02/01/17 21,581.38 120 119
248 Fully Amortizing 5 03/01/27 31,035.99 240 240
252 Partial IO/Balloon 5 01/01/17 19,702.22 120 118
265 Fully Amortizing 0 06/15/18 (Note 5)(Note 6) 42,761.08 301 (Note 5)(Note 6) 135
269 Partial IO/Balloon 5 10/01/16 17,781.94 120 115
296 Fully Amortizing 5 01/01/18 35,795.00 296 130
299 Partial IO/Balloon 5 01/01/17 14,209.63 120 118
325 Balloon 0 07/01/11 17,378.35 120 52
367 Balloon 5 05/01/16 8,199.79 120 110
379 Partial IO/Balloon 7 02/01/17 5,736.38 120 119
6b Interest Only 5 02/01/17 199,260.96 120 119
STATED STATED
ORIGINAL REMAINING DEFEASANCE
LOAN AMORTIZATION AMORTIZATION LOAN BORROWER'S PROPERTY LOCKBOX
NUMBER TERM (MONTHS) TERM (MONTHS) (YES/NO)? INTEREST PROPERTY SIZE SIZE TYPE (YES/NO)?
------------------------------------------------------------------------------------------------------------------------------------
3 Interest Only Interest Only Yes Fee Simple 2,769,954 SF Yes
6 Interest Only Interest Only Yes Leasehold 1,567,711 SF Yes
7 Interest Only Interest Only Yes (Note 2) Fee Simple 380 Rooms Yes
8 Interest Only Interest Only No Fee Simple 1,228 Units Yes
------------------------------------------------------------------------------------------------------------------------------------
10 Interest Only Interest Only Yes Fee Simple 5,489,325 SF Yes
10.1 Fee Simple 431,369 SF
10.2 Fee Simple 455,227 SF
10.3 Fee Simple 458,518 SF
10.4 Fee Simple 398,223 SF
10.5 Fee Simple 270,772 SF
10.6 Fee Simple 327,601 SF
10.7 Fee Simple 243,170 SF
10.8 Fee Simple 252,075 SF
10.9 Fee Simple 299,776 SF
10.10 Fee Simple 252,419 SF
10.11 Fee Simple 127,260 SF
10.12 Fee Simple 162,914 SF
10.13 Fee Simple 163,796 SF
10.14 Fee Simple 168,007 SF
10.15 Fee Simple 260,356 SF
10.16 Fee Simple 111,499 SF
10.17 Fee Simple 188,734 SF
10.18 Fee Simple 118,003 SF
10.19 Fee Simple 573,183 SF
10.20 Fee Simple 226,423 SF
------------------------------------------------------------------------------------------------------------------------------------
13 Interest Only Interest Only Yes Fee Simple 493 Rooms Springing
17 Interest Only Interest Only No Fee Simple 409 Units No
21 Interest Only Interest Only No Fee Simple 306 Units No
22 Interest Only Interest Only Yes Leasehold 217,351 SF No
24 360 360 Yes Fee Simple 364 Units Yes
27 Interest Only Interest Only No Fee Simple 500 Units No
31 360 360 Yes Fee Simple 366 Units Yes
------------------------------------------------------------------------------------------------------------------------------------
32 360 360 Yes Fee Simple 463,747 SF Yes
32.1 Fee Simple 37,330 SF
32.2 Fee Simple 37,600 SF
32.3 Fee Simple 60,000 SF
32.4 Fee Simple 29,775 SF
32.5 Fee Simple 37,500 SF
32.6 Fee Simple 37,500 SF
32.7 Fee Simple 35,000 SF
32.8 Fee Simple 45,000 SF
32.9 Fee Simple 45,000 SF
32.10 Fee Simple 30,000 SF
32.11 Fee Simple 40,625 SF
32.12 Fee Simple 28,417 SF
------------------------------------------------------------------------------------------------------------------------------------
35 360 360 Yes Fee Simple 152 Units No
40 Interest Only Interest Only Yes Fee Simple 255,185 SF No
43 360 360 No Fee Simple 414 Units No
47 Interest Only Interest Only Yes Fee Simple 326 Units Yes
48 360 360 Yes Fee Simple 301,346 SF No
60 360 360 Yes Fee Simple 174,728 SF Yes
61 Interest Only Interest Only Yes Fee Simple 157 Units No
62 360 360 Yes Fee Simple 119,530 SF No
63 Interest Only Interest Only Yes Fee Simple 225 Units Yes
70 360 360 Yes Fee Simple 74,001 SF No
78 360 360 Yes Fee Simple 161,331 SF No
81 Interest Only Interest Only Yes Fee Simple 104,234 SF No
85 Interest Only Interest Only No Fee Simple 289,733 SF No
109 360 360 Yes Fee Simple 66,509 SF No
110 360 360 Yes Fee Simple 69,374 SF Yes
------------------------------------------------------------------------------------------------------------------------------------
121 360 349 Yes Fee in Part, Leasehold in Part 1,431 Rooms Yes
121.1 Fee Simple 225 Rooms
121.2 Fee Simple 252 Rooms
121.3 Leasehold 150 Rooms
121.4 Leasehold 261 Rooms
121.5 Fee Simple 300 Rooms
121.6 Leasehold 243 Rooms
------------------------------------------------------------------------------------------------------------------------------------
124 Interest Only Interest Only Yes Fee Simple 200,723 SF No
149 360 360 Yes Fee Simple 85,585 SF No
152 360 360 Yes Fee Simple 30,234 SF No
163 360 360 Yes Fee Simple 16,148 SF No
176 Interest Only Interest Only Yes Fee Simple 5 Units No
177 360 360 Yes Fee Simple 26 Units No
186 360 360 Yes Fee Simple 71,308 SF No
197 252 142 Yes (Note 8) Fee Simple 46,658 SF No
202 360 289 Yes (Note 8) Fee Simple 48,407 SF No
216 360 360 Yes Fee Simple 44 Units No
222 Interest Only Interest Only Yes Fee Simple 9,200 SF Yes
223 360 360 No Fee Simple 150 Units No
227 360 360 Yes Fee Simple 79,819 SF No
235 360 293 Yes (Note 8) Fee Simple 42,800 SF No
237 360 360 Yes Fee Simple 58,730 SF No
240 360 360 Yes Fee Simple 9,143 SF No
248 240 240 Yes Fee Simple 17,272 SF No
252 360 360 No Fee Simple 81 Units No
265 300 134 No Fee Simple 94,841 SF No
269 360 360 Yes Fee Simple 96 Units No
296 296 130 No Fee Simple 94,841 SF No
299 360 360 No Fee Simple 6,600 SF Springing
325 360 292 Yes (Note 8) Fee Simple 109,553 SF No
367 360 350 Yes Fee Simple 35 Units No
379 360 360 No Fee Simple 3,523 SF No
6b Interest Only Interest Only
ESCROWED ESCROWED TI/LC
ESCROWED REPLACEMENT RESERVES
ESCROWED ESCROWED REPLACEMENT RESERVES ESCROWED TI/LC CURRENT
LOAN ANNUAL REAL ANNUAL RESERVES INITIAL CURRENT RESERVES INITIAL ANNUAL
NUMBER ESTATE TAXES INSURANCE DEPOSIT ANNUAL DEPOSIT DEPOSIT DEPOSIT
------------------------------------------------------------------------------------------------------------------------
3 No ▇▇ ▇ ▇ ▇ ▇
▇ ▇▇ ▇▇ 0 0 0 0
7 No No 0 0 NAP NAP
8 Yes Yes 29,281,175 0 NAP NAP
------------------------------------------------------------------------------------------------------------------------
10 No No 0 0 0 0
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
------------------------------------------------------------------------------------------------------------------------
13 No No 0 0 NAP NAP
17 Yes Yes 0 0 NAP NAP
21 Yes No 0 0 0 38,676
22 Yes Yes 500,000 0 0 0
24 Yes Yes 0 54,600 NAP NAP
27 Yes Yes 1,400,000 86,100 NAP NAP
31 Yes Yes 0 73,200 NAP NAP
------------------------------------------------------------------------------------------------------------------------
32 Yes Yes 0 46,380 1,000,000 0
32.1
32.2
32.3
32.4
32.5
32.6
32.7
32.8
32.9
32.10
32.11
32.12
------------------------------------------------------------------------------------------------------------------------
35 Yes Yes 0 30,408 NAP NAP
40 No No 0 0 0 0
43 Yes Yes 2,443,312 0 NAP NAP
47 Yes Yes 2,750,000 61,944 NAP NAP
48 Yes Yes 200,000 45,204 650,000 151,740
60 Yes Yes 0 34,944 600,000 0
61 Yes Yes 0 40,728 NAP NAP
62 Yes Yes 0 23,916 0 119,532
63 Yes Yes 0 49,728 NAP NAP
70 Yes Yes 29,616 0 148,008 0
78 Yes Yes 0 32,268 913,620 127,452
81 No No 0 0 0 0
85 Yes No 58,020 0 232,056 0
109 Yes Yes 0 13,308 0 66,516
110 Yes Yes 0 13,884 0 0
------------------------------------------------------------------------------------------------------------------------
121 No No 0 0 NAP NAP
121.1
121.2
121.3
121.4
121.5
121.6
------------------------------------------------------------------------------------------------------------------------
124 No No 0 0 0 0
149 Yes Yes 0 17,124 0 42,804
152 Yes Yes 0 6,048 0 22,680
163 Yes Yes 0 2,424 0 9,696
176 Yes Yes 0 1,596 0 0
177 Yes Yes 0 6,504 NAP NAP
186 Yes Yes 0 13,812 NAP NAP
197 No No 0 0 0 0
202 Yes Yes 15,668 14,388 33,479 65,976
216 Yes Yes 0 11,808 0 4,344
222 Yes Yes 0 1,380 0 0
223 Yes Yes 56,385 42,288 NAP NAP
227 Yes Yes 0 11,976 NAP NAP
235 Yes No 50,458 8,560 869,869 28,376
237 Yes Yes 0 11,748 0 29,376
240 Yes Yes 0 1,380 11,470 9,144
248 No No 0 0 0 0
252 Yes Yes 0 20,256 NAP NAP
265 No No 0 0 0 0
269 Yes No 0 24,000 NAP NAP
296 No No 0 0 0 0
299 Yes Yes 0 996 0 0
325 Yes No 389,547 10,955 0 0
367 Yes Yes 7,875 10,500 NAP NAP
379 Yes No 0 0 10,000 0
6b
INITIAL
DEFERRED INITIAL ENVIRONMENTAL
LOAN MAINTENANCE ENVIRONMENTAL HOLDBACK INSURANCE
NUMBER DEPOSIT DEPOSIT AMOUNT LOC POLICY
--------------------------------------------------------------------------------
3 25,000 0
6 0 0
7 0 0
8 0 150,000
--------------------------------------------------------------------------------
10 468,563 0
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
--------------------------------------------------------------------------------
13 0 0
17 0 0
21 0 0
22 0 0
24 0 0
27 53,350 0
31 0 0 7,115,284
--------------------------------------------------------------------------------
32 11,057 390,000
32.1
32.2
32.3
32.4
32.5
32.6
32.7
32.8
32.9
32.10
32.11
32.12
--------------------------------------------------------------------------------
35 7,500 0
40 0 0
43 56,688 0
47 0 0
48 0 0
60 1,025,750 0
61 0 0
62 0 0
63 1,760,000 0
70 0 0 1,400,000
78 0 0
81 0 0
85 0 0
109 0 0
110 0 0
--------------------------------------------------------------------------------
121 0 0
121.1
121.2
121.3
121.4
121.5
121.6
--------------------------------------------------------------------------------
124 0 0
149 0 0
152 27,500 0
163 0 0 250,107
176 0 0
177 0 0
186 0 0
197 NAP 0
202 0 0
216 0 0
222 0 0
223 0 0
227 0 0 325,000
235 0 0
237 0 0
240 0 0
248 NAP 0
252 93,578 0
265 0 0
269 27,250 0
296 0 0
299 1,250 0
325 0 0
367 0 0
379 NAP 0
6b
ANNEX B
ACS PURCHASE AGREEMENT
IV-3
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of March 14, 2007 between AMERICAN CAPITAL STRATEGIES, LTD., as seller (the
"Seller"), and GERMAN AMERICAN CAPITAL CORPORATION, as purchaser (the
"Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". It is expected that the Mortgage Loans,
along with certain other mortgage loans (the "Other Mortgage Loans") will be
transferred into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates"). One or more "real estate
mortgage investment conduit" ("REMIC") elections will be made with respect to
most of the Trust Fund. The Trust Fund will be created and the Certificates will
be issued on a date (the "Securitization Closing Date") pursuant to a pooling
and servicing agreement (the "Pooling and Servicing Agreement"), to be dated as
of March 1, 2007, among Citigroup Commercial Mortgage Securities Inc., as
depositor (the "Depositor"), Wachovia Bank, National Association, Midland Loan
Services, Inc. and Capmark Finance Inc., as master servicers (each a "Master
Servicer" and, together, the "Master Servicers"), LNR Partners, Inc., as special
servicer (the "Special Servicer"), ▇▇▇▇▇ Fargo Bank, National Association, as
trustee (the "Trustee") and LaSalle Bank National Association, as certificate
administrator (the "Certificate Administrator"). It is anticipated that the
Securitization Closing Date will be March 29, 2007. Capitalized terms used
herein (including the schedules attached hereto) but not defined herein (or in
such schedules) have the respective meanings set forth in the Pooling and
Servicing Agreement.
The Depositor intends to sell certain Classes of the Certificates
(the "Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
Deutsche Bank Securities, Inc. ("Deutsche Bank"), RBC Capital Markets
Corporation, LaSalle Financial Services, Inc. and PNC Capital Markets LLC
(collectively, the "Dealers"), pursuant to an underwriting agreement dated as of
the date hereof (the "Underwriting Agreement"), between the Depositor and the
Dealers. The Publicly Offered Certificates are more particularly described in a
prospectus supplement dated March 14, 2007 (the "Prospectus Supplement") and the
accompanying base prospectus dated March 5, 2007 (the "Base Prospectus" and,
together with the Prospectus Supplement, the "Prospectus").
The Depositor further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and Deutsche Bank,
pursuant to a certificate purchase agreement dated as of the date hereof (the
"Certificate Purchase Agreement"), between the Depositor, CGMI and Deutsche
Bank. The Privately Offered Certificates are more particularly described in an
offering memorandum dated March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and/or Standard & Poor's Rating
Services, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (together, the "Rating
Agencies").
In connection with the sale of the Mortgage Loans to the Trust Fund,
the Seller shall enter into an indemnification agreement dated as of the date of
the sale to the Trust Fund (the "Indemnification Agreement"), between the
Seller, the Purchaser, the Depositor and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $44,770,058.06 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The purchase and sale of the
Mortgage Loans shall take place on the Securitization Closing Date. The
consideration (the "Aggregate Purchase Price") for the Mortgage Loans shall
consist of a cash amount, payable in immediately available funds, as reflected
on the settlement statement agreed to by the Seller and the Purchaser, which
amount shall include interest accrued on the Mortgage Loan Balance for the
period from and including the Cut-off Date up to but not including the
Securitization Closing Date. The Aggregate Purchase Price shall be reduced by an
amount equal to one month of interest payable by the related borrower under the
related Late Payment Date Loan, which amount shall be payable by the Seller to
the Depositor on the Securitization Closing Date and will be used to make an
interest only payment under such Late Payment Date Loan to the
Certificateholders in April 2007. "Late Payment Date Loan" means any of the
Mortgage Loans known as (and identified on Annex A-1 to the Prospectus
Supplement as) JHQ Hotel Portfolio B-Note, 24 Hour Fitness and Big Kmart -
▇▇▇▇▇▇▇▇.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Securitization
Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Securitization Closing Date, subject only
to receipt by the Seller of the Aggregate Purchase Price and satisfaction or
waiver of the other conditions to closing that are for the benefit of the
Seller, the Seller does hereby sell, transfer, assign, set over and otherwise
convey to the Purchaser, without recourse (except as set forth in this
Agreement), all the right, title and interest of the Seller in and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such date, on a
servicing-released basis, together with all of the Seller's right, title and
interest in and to the proceeds of any related title, hazard, primary mortgage
or other insurance and any escrow, reserve or comparable accounts related to the
Mortgage Loans, subject, in the case of any Mortgage Loan that is part of a Loan
Combination, to the rights of the holder(s) of any other mortgage loan(s) in the
related Loan Combination in such proceeds and reserve or comparable accounts.
2
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date). All scheduled payments of principal and interest due
on or before the Cut-off Date but collected after the Cut-off Date, and
recoveries of principal and interest collected on or before the Cut-off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Securitization Closing Date, the Seller
shall, on behalf of the Purchaser, deliver or cause to be delivered to the
Trustee (with a copy (except in the case of any letter of credit referred to in
clause (xi)(D) below) to the applicable Master Servicer and the Special Servicer
within ten (10) Business Days after the Closing Date) the documents and
instruments specified below under clauses (i), (ii), (vii), (ix)(A) and (xi)(D)
and shall, not later than the date that is 30 days after the Securitization
Closing Date, deliver or cause to be delivered to the Trustee (with a copy to
the applicable Master Servicer) the remaining documents and instruments
specified below, in each case with respect to each Mortgage Loan that is a
Serviced Trust Mortgage Loan (the documents and instruments specified below,
collectively, the "Mortgage File"). The Mortgage File for each Serviced Trust
Mortgage Loan shall contain the following documents:
(i) in the case of any Serviced Trust Mortgage Loan
(including any A-Note Trust Mortgage Loan and any B-Note Trust Mortgage
Loan), the original executed Mortgage Note including any power of attorney
related to the execution thereof, together with any and all intervening
endorsements thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or implied) to the
order of "▇▇▇▇▇ Fargo Bank, National Association, as trustee for the
registered holders of CD 2007-CD4 Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or a copy of the Mortgage, together with
any and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of
Leases (if such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case (unless not
yet returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable recording
office;
(iv) an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in blank,
the name of the assignee), of (A) the Mortgage, (B) any related Assignment
of Leases (if such item is a document separate from the Mortgage) and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "▇▇▇▇▇ Fargo Bank,
3
National Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4", or in blank;
(v) an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already assigned
pursuant to clause (iii) above), in favor of "▇▇▇▇▇ Fargo Bank, National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series CD 2007-CD4", or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been assumed or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a pro forma policy or specimen version of, or a marked commitment
for, the policy that has been executed by an authorized representative of
the title company or an agreement to provide the same pursuant to binding
escrow instructions executed by an authorized representative of the title
company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the subject
Mortgage Loan or in favor of any assignee prior to the Trustee (but only
to the extent the Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing office;
and, if there is an effective UCC Financing Statement in favor of the
Seller on record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "▇▇▇▇▇ Fargo Bank, National Association,
as trustee for the registered holders of CD 2007-CD4 Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD 2007-CD4",
as assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C) lender's
environmental insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating to a
Trust Mortgage Loan (with the original of any such letter of credit to be
delivered to the applicable Master Servicer).
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
4
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
each of the other Crossed Loans in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan promptly (and in any event, as to any such Mortgage Loan, within
90 days following the latest of (i) the Closing Date and (ii) the delivery of
the related Mortgage(s), Assignment(s) of Leases, recordable documents, and UCC
Financing Statements to the Trustee) complete (if and to the extent necessary)
and cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, in favor of the Trustee referred to in Sections 2(c)(iv)(A), (B) and (C)
and each assignment of a UCC Financing Statement in favor of the Trustee and so
delivered to the Trustee and referred to in Section 2(c)(viii). The Seller shall
cause the recorded original of each such assignment of recordable documents to
be delivered to the Trustee or its designee following recording, and shall cause
the file copy of each such UCC Financing Statement to be delivered to the
Trustee or its designee following filing; provided that in those instances where
the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Seller or the Recording/Filing Agent
shall obtain therefrom a certified copy of the recorded original, which shall be
delivered to the Trustee or its designee. If any such document or instrument is
lost or returned unrecorded or unfilled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter cause the same
to be duly recorded or filed, as appropriate. The Seller shall be responsible
for the out of pocket costs and expenses of the Recording/Filing Agent in
connection with its performance of the recording, filing and delivery
obligations contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Securitization Closing Date, all documents and records in
the Seller's possession (except draft documents, attorney-client privileged
communications and internal correspondence, credit underwriting or due diligence
analyses, credit committee briefs or memoranda or other internal approval
documents or data or internal worksheets, memoranda, communications or
evaluations and other underwriting analysis of the Seller) relating to, and
necessary for the servicing and administration of, each Mortgage Loan and that
are not required to be part of the Mortgage File in accordance with the
definition thereof (including, without limitation, any original letters of
credit relating to any Mortgage Loan); and (ii) within two (2) Business Days
after the Securitization Closing Date, any and all escrow amounts and reserve
amounts in the Seller's possession or under its control that relate to the
Mortgage Loans.
5
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan. Without
limiting the generality of the foregoing, if a draw upon a letter of credit is
required before its transfer to the Trust Fund can be completed, the Seller
shall draw upon such letter of credit for the benefit of the Trust pursuant to
written instructions from the applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
(h) It is acknowledged and agreed by the Seller that the Purchaser
intends to convey all right, title and interest of the Purchaser in and to each
Mortgage Loan and all rights and remedies under this Agreement (excluding the
Purchaser's rights and remedies under Section 7) to the Depositor, and that the
Depositor intends to convey such rights and remedies to the Trustee on behalf of
the Certificateholders, including, without limitation, all rights and remedies
as may be available under Section 3 with respect to repurchase and substitution,
against the Seller in the event of an Early Defeasance (as defined below)
exercised by a borrower under an Early Defeasance Loan, a Document Defect or
Breach; provided, that the Trustee on behalf of the Certificateholders (as
defined below) shall be a third-party beneficiary of this Agreement and shall be
entitled to enforce against the Seller any obligations of the Seller hereunder
in connection with an Early Defeasance exercised by a borrower under an Early
Defeasance Loan, a Document Defect or Breach as if the Trustee on behalf of the
Certificateholders had been an original party to this Agreement. It is further
acknowledged and agreed by the Seller that notwithstanding the transfer of each
Mortgage Loan to the Purchaser, the Seller shall retain the obligations set
forth in this Section 2.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i) The Seller is a corporation organized and validly
existing and in good standing under the laws of the State of Delaware and
possesses all requisite authority, power, licenses, permits and franchises
to carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this Agreement;
(ii) This Agreement has been duly and validly
authorized, executed and delivered by the Seller and, assuming due
authorization, execution and delivery hereof by the Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable against
the Seller in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
in general and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions
6
of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the
Seller and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
(iv) The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the financial condition or the
operations of the Seller or its properties (taken as a whole) or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement
or instrument or subject to any other corporate restriction or any
judgment, order, writ, injunction, decree, law or regulation that would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its obligations
under this Agreement or that requires the consent of any third person to
the execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by the Seller of, or compliance by the Seller
with, this Agreement or the consummation of the transactions involving the
Seller contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement;
(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for
consideration contemplated by this Agreement. The consideration received
by the Seller upon the sale of the Mortgage Loans to the Purchaser
7
will constitute at least reasonably equivalent value and fair
consideration for the Mortgage Loans. The Seller will be solvent at all
relevant times prior to, and will not be rendered insolvent by, the sale
of the Mortgage Loans to the Purchaser. The Seller is not transferring the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller or on account of an antecedent
debt; and
(ix) Insofar as it relates to the Mortgage Loans, the
information set forth in Annex A-1 and Annex A-2 to the Prospectus
Supplement (the "Loan Detail") and, to the extent consistent therewith,
the information set forth on the diskette attached to the Prospectus
Supplement and the accompanying prospectus (the "Diskette"), is true and
correct in all material respects. Insofar as it relates to the description
of the Mortgage Loans and/or the Seller and does not represent a
restatement or aggregation of the information on the Loan Detail, the
information set forth in Time of Sale Information (as defined in the ASC
Indemnification Agreement), the Memorandum (as defined in the ASC
Indemnification Agreement) (insofar as the Prospectus Supplement is an
exhibit thereto) and in the Prospectus Supplement, does not (or, in the
case of the Time of Sale Information, did not as of the Time of Sale (as
defined in the ACS Indemnification Agreement) contain any untrue statement
of a material fact or (in the case of the Memorandum, when read together
with the other information specified therein as being available for review
by investors) omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The Seller hereby makes, on the date hereof and on the
Securitization Closing Date, the representations and warranties contained in
Schedule I and Schedule II hereto with respect to each Mortgage Loan, for the
benefit of the Purchaser, which representations and warranties are subject to
the exceptions set forth on Schedules III and IV. References in this Agreement
to "Breach" mean a breach of any such representations and warranties made
pursuant to this Section 3(b) with respect to any Mortgage Loan. In addition,
with respect to the Mortgage Loans known as (and identified on Annex A-1 to the
Prospectus Supplement as) JQH Hotel Portfolio B-Note, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇ Office Complex, Commerce Executive Park I and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Early Defeasance Loans"), which Mortgage Loans permit defeasance prior to the
second anniversary of the Securitization Closing Date, in the event the related
borrower attempts to defease its related underlying mortgage loan on or before
the second anniversary of the Securitization Closing Date (such defeasance, an
"Early Defeasance"), then the Seller shall, prior to the Early Defeasance,
repurchase that Early Defeasance Loan at the applicable Purchase Price, together
with a Yield Maintenance Payment (as defined below). The "Yield Maintenance
Payment" is an amount equal to the greater of (a) 1.0% of the outstanding
principal balance of the related Early Defeasance Loan on the date of Early
Defeasance, or (b) the amount which is the positive difference as of the date of
the Early Defeasance between (i) the present value of all future scheduled
payments of principal and interest (including any balloon payment) through the
scheduled maturity date, discounted at the Discount Rate (as defined below), and
(ii) the outstanding principal balance of the Early Defeasance Loan on the date
of Early Defeasance. The "Discount Rate" means the rate which, when compounded
monthly, is equivalent to the Treasury Rate (as hereinafter defined), when
compounded semi-annually. The "Treasury Rate" means the yield calculated by the
interpolation of the yields, as reported in Federal Reserve Statistical Release
H.15-Selected
8
Interest Rates under the heading "U.S. Government Securities/Treasury Constant
Maturities" for the week ending prior to the date such payment or proceeds are
received, of U.S. Treasury constant maturities with maturity dates (one longer
and one shorter) most nearly approximating the maturity date for the related
Early Defeasance Loan (in the event Release H.15 is no longer published, the
Purchaser shall select a comparable publication to determine the Treasury Rate).
In the event the Purchaser, the Depositor or the Trust Fund suffer any adverse
tax consequence, loss, expense or damage as a result of the Seller's failure to
repurchase an Early Defeasance Loan as required hereunder, the Seller shall
immediately pay or reimburse such person for any loss, expense or damage
incurred.
(c) If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of the applicable Mortgage Loan or the
interests of the Certificateholders therein, then the Seller shall, not later
than ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from any party to the Pooling and Servicing Agreement
discovering such Document Defect or Breach, provided the Seller receives such
notice in a timely manner), cure such Document Defect or Breach, as the case may
be, in all material respects, or, if such Document Defect or Breach (other than
omissions solely due to a document not having been returned by the related
recording office) cannot be cured within such 90-day period, (i) repurchase the
affected Mortgage Loan at the applicable Purchase Price not later than the end
of such 90-day period, or (ii) substitute a Qualified Substitute Mortgage Loan
for such affected Mortgage Loan not later than the end of such 90-day period
(and in no event later than the second anniversary of the Securitization Closing
Date) and pay the applicable Master Servicer for deposit into its Collection
Account, any Substitution Shortfall Amount in connection therewith; provided
that, if a Document Defect or Breach is capable of being cured but not within
such 90-day period and the Seller has commenced and is diligently proceeding
with the cure of such Document Defect or Breach within such 90-day period, then
unless such Document Defect or Breach would cause the Mortgage Loan not to be a
Qualified Mortgage, such Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase or substitute for the related
Mortgage Loan); and provided, further, that with respect to such additional
90-day period the Seller shall have delivered an officer's certificate to the
Trustee setting forth what actions the Seller is pursuing in connection with the
cure thereof and stating that the Seller anticipates that such Document Defect
or Breach will be cured within the additional 90-day period; and provided,
further, that if the cure of any Document Defect or Breach would require an
expenditure on the part of the Seller in excess of $10,000, then the Seller may,
at its option, within the time period provided above, elect to purchase or
replace the affected Mortgage Loan in accordance with this Section 3 without
attempting to cure such Document Defect or Breach, as the case may be. For a
period of two years from the Securitization Closing Date, so long as there
remains any Mortgage File relating to a Mortgage Loan as to which there is an
uncured Document Defect that materially and adversely affects the value of the
applicable Mortgage Loan or the interests of the Certificateholders therein, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect remains uncured and as to the actions being
taken to pursue cure.
9
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of or
substitution for the affected Crossed Loan only, including, without limitation,
any modification required with respect to such repurchase or substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or substitution for
the affected Crossed Loan only shall satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein or in the
Pooling and Servicing Agreement. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the
applicable Master Servicer to determine if the Crossed Loan Repurchase Criteria
have been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld). To the
extent that the Seller is required to purchase or substitute for a Crossed Loan
hereunder in the manner prescribed above while the Purchaser continues to hold
any other Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other's Primary Collateral, but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Crossed Loans, including, with respect to the Purchaser, the
Primary Collateral securing the Crossed Loans still held by the Purchaser, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed
10
Loans can be modified in a manner that complies with this Agreement to remove
the threat of material impairment as a result of the exercise of remedies or
some other accommodation can be reached. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Crossed Loans in accordance with the Mortgage Loan documents or, if not
specified in the related Mortgage Loan documents, on a pro rata basis based upon
their outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document Defect or Breach
shall materially and adversely affect the value of the related Mortgage Loan or
the interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master
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Servicer and the Special Servicer shall release to the Seller any Escrow
Payments and Reserve Funds held by it in respect of such repurchased or replaced
Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4. Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland. The
Purchaser has the full power and authority and legal right to acquire the
Mortgage Loans from the Seller and to transfer the Mortgage Loans to the
Trustee.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and the execution,
delivery or performance of this Agreement by the Purchaser, results or will
result in the creation or imposition of any lien on any of the Purchaser's
assets or property, or conflicts or will conflict with, results or will result
in a
12
breach of, or constitutes or will constitute a default under (i) any term or
provision of the Purchaser's articles of association or bylaws, (ii) any term or
provision of any material agreement, contract, instrument or indenture, to which
the Purchaser is a party or by which the Purchaser is bound, or (iii) any law,
rule, regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Purchaser or its assets,
which default might have consequences that would, in the Purchaser's reasonable
and good faith judgment, materially and adversely affect the condition
(financial or other) or operations of the Purchaser or its properties or have
consequences that would materially and adversely affect its performance
hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the Purchaser as
a sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending
or to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would, in the Purchaser's reasonable and good faith judgment, materially and
adversely affect the validity of this Agreement or any action taken in
connection with the obligations of the Purchaser contemplated herein, or which
would be likely to impair materially the ability of the Purchaser to enter into
and/or perform under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans (the "Closing") shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, New York, New York on the Securitization Closing Date.
The Closing shall be subject to each of the following conditions and
covenants:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and
all of the representations and warranties of the Purchaser set forth in Section
4 of this Agreement shall be true and correct in all material respects as of the
date hereof and as of the Securitization Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller hereunder) and all documents specified in Section
6 of this Agreement (the "Closing Documents"), in such forms as are agreed upon
and acceptable to the Depositor, the Seller, the Purchaser, the Dealers and
their respective counsel in their reasonable discretion, shall be duly executed
and delivered by all signatories as required pursuant to the respective terms
thereof;
(c) The Seller or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable Master
Servicer, respectively, all documents
13
represented to have been or required to be delivered to the Trustee and such
Master Servicer on or before the Securitization Closing Date pursuant to Section
2 of this Agreement;
(d) All other terms and conditions of this Agreement required to
be complied with on or before the Securitization Closing Date shall have been
complied with in all material respects and the Seller and the Purchaser shall
each have the ability to comply with all terms and conditions and perform all
duties and obligations required to be complied with or performed after the
Securitization Closing Date;
(e) The Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement as of the
Securitization Closing Date; and
(f) Letters from an independent accounting firm reasonably
acceptable to the Purchaser and the Seller in form satisfactory to the
Depositor, relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus, the Prospectus Supplement and other
disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Securitization Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated
the Securitization Closing Date, and upon which the Depositor and the Dealers
may rely, to the effect that: (i) the representations and warranties of the
Seller in this Agreement and the Indemnification Agreement are true and correct
in all material respects at and as of the date hereof and as of the
Securitization Closing Date with the same effect as if made on such date,
subject, in the case of the representations and warranties made by the Seller
pursuant to Section 3(b) of this Agreement, to the exceptions to such
representations and warranties set forth in Schedules III and IV to this
Agreement; and (ii) the Seller has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part that are required
under this Agreement to be performed or satisfied at or prior to the date hereof
or the Securitization Closing Date, as applicable;
(c) An officer's certificate from the Seller, dated the
Securitization Closing Date, and upon which the Depositor and the Dealers may
rely, to the effect that each individual who, as an officer or representative of
the Seller, signed this Agreement or any other document or certificate delivered
on or before the Securitization Closing Date in connection with the transactions
contemplated herein, was at the respective times of such signing and delivery,
and is as of the date hereof and as of the Securitization Closing Date, duly
elected or appointed, qualified and acting as such officer or representative,
and the signatures of such persons appearing on such documents and certificates
are their genuine signatures;
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(d) True and complete copies of the certificate of incorporation
and by-laws of the Seller (as certified to by the Secretary or an assistant
secretary of the Seller), and a certificate of good standing of the Seller
issued by the State of Delaware not earlier than thirty (30) days prior to the
Securitization Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate, enforceability and reasonably satisfactory to the Purchaser,
its counsel, the Depositor, its counsel and the Rating Agencies, dated the
Securitization Closing Date, including but not limited to, a true sale opinion
and an enforceability opinion and addressed to the Purchaser, the Depositor, the
Trustee, the Certificate Administrator, the Dealers and the Rating Agencies,
together with such other written opinions as may be required by the Rating
Agencies;
(f) Letters from counsel regarding securities law matters
including 10b5 matters and Rule 159 and Regulation AB compliance; and
(g) Such further certificates, opinions and documents as the
Purchaser or the Depositor may reasonably request in connection with the sale of
the Mortgage Loans by the Seller to the Purchaser and the sale of the Mortgage
Loans to the Depositor.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid or is required to pay) the
Seller's pro rata portion of the aggregate of the following amounts (the
Seller's pro rata portion to be determined according to the percentage that the
Seller Mortgage Loan Balance represents of the Cut-off Date Pool Balance, the
exact amount of which shall be as set forth in or determined pursuant to the
memorandum of understanding, to which the Seller and the Purchaser (or
affiliates thereof) are parties, with respect to the transactions contemplated
by this Agreement): (i) the costs and expenses of delivering the Pooling and
Servicing Agreement and the Certificates; (ii) the costs and expenses of
printing (or otherwise reproducing) and delivering a final Prospectus and
Memorandum and other customary offering materials relating to the Certificates;
(iii) the initial fees, costs, and expenses of the Trustee and the Certificate
Administrator (including reasonable attorneys' fees) incurred in connection with
the securitization of the Mortgage Loans and the Other Mortgage Loans; (iv) the
filing fee charged by the Securities and Exchange Commission for registration of
the Certificates so registered; (v) the fees charged by the Rating Agencies to
rate the Certificates so rated; (vi) the fees and disbursements of a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the Mortgage Loans, the Other
Mortgage Loans and the Certificates included in the Prospectus, the Memorandum
and other customary offering materials, including the cost of obtaining any
"comfort letters" with respect to such items; (vii) the reasonable out-of-pocket
costs and expenses in connection with the qualification or exemption of the
Certificates under state securities or "Blue Sky" laws, including filing fees
and reasonable fees and disbursements of counsel in connection therewith, in
connection with the preparation of any "Blue Sky" survey and in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Dealers. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
15
SECTION 8. Grant of a Security Interest. It is the express
intent of the parties hereto that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement, and in connection therewith the Seller
authorizes the Purchaser to file any and all appropriate Uniform Commercial Code
financing statements.
SECTION 9. Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
16
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller submitted pursuant hereto, shall remain
operative and in full force and effect and shall survive delivery of the
Mortgage Loans by the Seller to the Purchaser (and by the Purchaser to the
Depositor and by the Depositor to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED
IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller and the Purchaser regarding their
respective rights and obligations under this Agreement, the prevailing party
shall be entitled to recover, in addition to damages or other relief, costs and
expenses, attorneys' fees and court costs (including, without limitation, expert
witness fees). As used herein, the term "prevailing party" shall mean the party
which obtains the principal relief it has sought, whether by compromise
settlement or judgment. If the party which commenced or instituted the action,
suit or proceeding shall dismiss or discontinue it without the concurrence of
the other party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser
agree to execute and deliver such instruments and take such further actions as
the other party may, from time to time, reasonably request in order to
effectuate the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations
of the Seller under this Agreement shall not be assigned by the Seller without
the prior written consent of the
17
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Seller is a party, or any person succeeding to all or
substantially all of the business of the Seller, shall be the successor to the
Seller hereunder. The Purchaser has the right to assign its interest under this
Agreement, in whole or in part, as may be required to effect the purposes of the
Pooling and Servicing Agreement, and the assignee shall, to the extent of such
assignment, succeed to the rights and obligations hereunder of the Purchaser.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
and be enforceable by the Seller, the Purchaser and their permitted successors
and assigns. No holder or beneficial owner of a Certificate shall be deemed a
permitted successor or assign to the Purchaser solely by reason of its interest
in such Certificate.
SECTION 17. Amendments. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(d)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate with accountants designated by the Depositor and reasonably acceptable
to the Seller in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty
or other statement in this Agreement is made with respect to a Person's
"knowledge", such statement refers to such Person's employees or agents who were
or are responsible for or involved with the indicated matter and have actual
knowledge of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide
the Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
AMERICAN CAPITAL STRATEGIES, LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
PURCHASER
GERMAN AMERICAN CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[SELLER] MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
American Capital Strategies, Ltd.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Purchaser:
Address for Notices:
German American Capital Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in
the Mortgage Loan Schedule was true and correct in all material respects
as of the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan, including those
pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future
advances thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application
of any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the
enforcement of creditors' rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). The related Mortgage Note and Mortgage
contain no
I-1
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to
any of the related Mortgage Notes, Mortgage(s) or other agreements
executed in connection therewith, and, as of the Cut-off Date, there is no
valid offset, defense, counterclaim or right to rescission with respect to
such Mortgage Note, Mortgage(s) or other agreements, except in each case,
with respect to the enforceability of any provisions requiring the payment
of default interest, late fees, Additional Interest, prepayment premiums
or yield maintenance charges.
7. Each related assignment of Mortgage and assignment of
Assignment of Leases from the Seller to the Purchaser constitutes the
legal, valid and binding assignment from the Seller, except as such
enforcement may be limited by bankruptcy, insolvency, redemption,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally or by general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law). Each Mortgage and Assignment of
Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on
the related Mortgaged Property subject only to the exceptions and
limitations set forth in representation (5) above and the following title
exceptions (each such title exception, a "Title Exception", and
collectively, the "Title Exceptions"): (a) the lien of current real
property taxes, ground rents, water charges, sewer rents and assessments
not yet delinquent or accruing interest or penalties, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
and adversely interferes with the current use of the Mortgaged Property or
the security intended to be provided by such Mortgage or with the
Mortgagor's ability to pay its obligations under the Mortgage Loan when
they become due or materially and adversely affects the value of the
Mortgaged Property, (c) the exceptions (general and specific) and
exclusions set forth in the applicable policy described in representation
(12) below or appearing of record, none of which, individually or in the
aggregate, materially interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (d) other matters to which like properties are
commonly subject, none of which, individually or in the aggregate,
materially and adversely interferes with the current use of the Mortgaged
Property or the security intended to be provided by such Mortgage or with
the Mortgagor's ability to pay its obligations under the Mortgage Loan
when they become due or materially and adversely affects the value of the
Mortgaged Property, (e) the right of tenants (whether under ground leases,
space leases or operating leases) at the Mortgaged Property to remain
following a foreclosure or similar proceeding (provided that such tenants
are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the
Mortgage for such other Mortgage Loan, and (g) if such Mortgage Loan is
part of a Loan Combination, the lien of
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the Mortgage for the related Non-Trust Loan(s). Except with respect to
cross-collateralized and cross-defaulted Mortgage Loans and Mortgage Loans
that are part of a Loan Combination, there are no mortgage loans that are
senior or pari passu in right of payment with the subject Mortgage Loan
that are secured by the related Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or,
if not filed and/or recorded, have been submitted in proper form for
filing and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, and the Mortgages, security
agreements, chattel mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and security interest on such items of
personalty except as such enforcement may be limited by bankruptcy,
insolvency, receivership, reorganization, moratorium, redemption,
liquidation or other laws affecting the enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
Notwithstanding any of the foregoing, no representation is made as to the
perfection of any security interest in rents or other personal property to
the extent that possession or control of such items or actions other than
the filing of UCC Financing Statements are required in order to effect
such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with, in the case of taxes and governmental
assessments not presently due and payable, future escrow payments required
to be made pursuant to the related Mortgage Loan documents) to cover such
payments has been established. For purposes of this representation and
warranty, real estate taxes and governmental assessments and installments
thereof shall not be considered delinquent until the earlier of (a) the
date on which interest and/or penalties would first be payable thereon and
(b) the date on which enforcement action is entitled to be taken by the
related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and
to the Seller's actual knowledge based solely upon due diligence
customarily performed with the origination of comparable mortgage loans by
the Seller, each related Mortgaged Property was free and clear of any
material damage (other than deferred maintenance for which escrows were
established at origination) that would materially and adversely affect the
value of such Mortgaged Property as security for the Mortgage Loan, and to
the Seller's actual knowledge as of the Cut-off Date there was no
proceeding pending for the total or partial condemnation of such Mortgaged
Property.
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12. The lien of each related Mortgage as a first priority lien in
the original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Loan Combination, in the original
(aggregate, if applicable) principal amount of the other mortgage loan(s)
constituting the related Loan Combination) after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA
lender's title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable in connection with the assignment of the related
Mortgage Note without consent of the insurer and will inure to the benefit
of the Trustee as mortgagee of record; such policy is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no material claims have
been made under such policy and the Seller has not done anything, by act
or omission, and the Seller has no actual knowledge of any matter, which
would impair or diminish the coverage of such policy. The insurer issuing
such policy is either (x) a nationally recognized title insurance company
or (y) qualified to do business in the jurisdiction in which the related
Mortgaged Property is located to the extent required; and such policy
contains no material exclusions for, or affirmatively insures (except for
any Mortgaged Property located in a jurisdiction where such insurance is
not available) (a) access to a public road and (b) against any loss due to
encroachments of any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage was in full force and effect with
respect to each related Mortgaged Property, which insurance covered such
risks as were customarily acceptable to prudent commercial and multifamily
mortgage lending institutions lending on the security of property
comparable to the related Mortgaged Property in the jurisdiction in which
such Mortgaged Property is located, and with respect to a fire and
extended perils insurance policy, was in an amount (subject to a customary
deductible) at least equal to the lesser of (i) the replacement cost of
improvements located on such Mortgaged Property, or (ii) the original
principal balance of the Mortgage Loan (and, in the case of a Mortgage
Loan that is part of a Loan Combination, in the original (aggregate, if
applicable) principal amount of the other mortgage loan(s) constituting
the related Loan Combination), and in any event, in an amount necessary to
prevent operation of any co-insurance provisions, and, except if such
Mortgaged Property is operated as a manufactured housing community, such
Mortgaged Property is also covered by business interruption or rental loss
insurance, in an amount at least equal to twelve (12) months of operations
of the related Mortgaged Property (or in the case of a Mortgaged Property
without any elevator, six (6) months); and as of the Cut-off Date, to the
actual knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent
I-4
by a commercial and multifamily mortgage lending institution with respect
to a similar mortgage loan and which are set forth in the related
Mortgage, any insurance proceeds in respect of a casualty loss are
required to be applied either (i) to the repair or restoration of all or
part of the related Mortgaged Property or (ii) to the reduction of the
outstanding principal balance of the Mortgage Loan, subject in either case
to requirements with respect to leases at the related Mortgaged Property
and to other exceptions customarily provided for by prudent commercial and
multifamily mortgage lending institutions for similar loans. The Mortgaged
Property is also covered by comprehensive general liability insurance
against claims for personal and bodily injury, death or property damage
occurring on, in or about the related Mortgaged Property, in an amount
customarily required by prudent commercial and multifamily mortgage
lending institutions.
The insurance policies contain a standard mortgagee clause naming
the holder of the related Mortgage, its successors and assigns as loss
payee, in the case of a property insurance policy, and additional insured
in the case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to non-payment, ten (10) days prior written notice to
the Mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage requires that the Mortgagor maintain insurance as described above
or permits the Mortgagee to require insurance as described above, and
permits the Mortgagee to purchase such insurance at the Mortgagor's
expense if Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents
in the related Mortgage File, no Person or party other than the holder of
such Mortgage Note may declare any event of default or accelerate the
related indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months),
has not been, thirty (30) days or more past due in respect of any
Scheduled Payment.
I-5
16. Except with respect to ARD Loans, which provide that the rate
at which interest accrues thereon increases after the Anticipated
Repayment Date, the Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan constitutes a "qualified mortgage" within
the meaning of Section 860G(a)(3) of the Code (without regard to Treasury
regulations Sections 1.860G(2)(a)(3) and 1.860G(2)(f)(2), is directly
secured by a Mortgage on a commercial property or a multifamily
residential property, and either (a) substantially all of the proceeds of
such Mortgage Loan were used to acquire, improve or protect the portion of
such commercial or multifamily residential property that consists of an
interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was
the only security for such Mortgage Loan as of the Testing Date (as
defined below), or (b) the fair market value of the interest in real
property which secures such Mortgage Loan was at least equal to 80% of the
principal amount of such Mortgage Loan (i) as of the Testing Date, or (ii)
as of the Closing Date. For purposes of the previous sentence, (A) the
fair market value of the referenced interest in real property shall first
be reduced by (1) the amount of any lien on such interest in real property
that is senior to such Mortgage Loan, and (2) a proportionate amount of
any lien on such interest in real property that is on a parity with the
Mortgage Loan, and (B) the "Testing Date" shall be the date on which the
referenced Mortgage Loan was originated unless (1) such Mortgage Loan was
modified after the date of its origination in a manner that would cause a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.1001-3(b), and (2) such "significant
modification" did not occur at a time when such Mortgage Loan was in
default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected
to a "significant modification" after the date of its origination and at a
time when such Mortgage Loan was not in default or when default with
respect to such Mortgage Loan was not reasonably foreseeable, the Testing
Date shall be the date upon which the latest such "significant
modification" occurred.
19. One or more environmental site assessments, updates or
transaction screens thereof were performed by an environmental consulting
firm independent of the Seller and the Seller's affiliates with respect to
each related Mortgaged Property during the 18-months preceding the
origination of the related Mortgage Loan, except for those Mortgage Loans
identified on Annex A to this Schedule I for which a lender's
environmental insurance policy was obtained in lieu of such environmental
site assessments, updates and transaction screens, and the Seller, having
made no independent inquiry other than to review the report(s) prepared in
connection with the assessment(s), updates or transaction screens
referenced herein, has no actual knowledge and has received no notice of
any material and adverse environmental condition or circumstance
I-6
affecting such Mortgaged Property that was not disclosed in such
report(s). If any such environmental report identified any Recognized
Environmental Condition (REC), as that term is defined in the Standard
Practice for Environmental Site Assessments: Phase I Environmental Site
Assessment Process Designation: E 1527-00, as recommended by the American
Society for Testing and Materials (ASTM), with respect to the related
Mortgaged Property and the same have not been subsequently addressed in
all material respects, then one or more of the following is true: (i) an
escrow greater than 100% of the amount identified as necessary by the
environmental consulting firm to address the REC is held by the Seller for
purposes of effecting same (and the related Mortgagor has covenanted in
the Mortgage Loan documents to perform such work); (ii) the related
Mortgagor or other responsible party having financial resources reasonably
estimated to be adequate to address the REC is required to take such
actions or is liable for the failure to take such actions, if any, with
respect to such circumstances or conditions as have been required by the
applicable governmental regulatory authority or any environmental law or
regulation; (iii) the related Mortgagor has provided a lender's
environmental insurance policy (in which case such Mortgage Loan is
identified on Annex A to this Schedule I); (iv) an operations and
maintenance plan has been or will be implemented; (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; or (vi) the Mortgagor or other responsible
party has obtained a no further action letter or other evidence that
governmental authorities have no intention of taking any action or
requiring any action in respect of the REC. All environmental assessments
or updates that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance carrier issuing
such policy prior to the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy,
insolvency, reorganization, receivership, moratorium, redemption,
liquidation or similar laws affecting the rights of creditors and the
application of principles of equity.
21. At the time of origination and, to the actual knowledge of
Seller as of the Cut-off Date, no Mortgagor is a debtor in any state or
federal bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a
Loan Combination, each Mortgage Loan is a whole loan and contains no
equity participation by the Seller or shared appreciation feature and does
not provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or, other
than the ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest in the related Mortgagor.
I-7
23. Subject to certain exceptions, which are customarily
acceptable to prudent commercial and multifamily mortgage lending
institutions lending on the security of property comparable to the related
Mortgaged Property, each related Mortgage or loan agreement contains
provisions for the acceleration of the payment of the unpaid principal
balance of such Mortgage Loan if, without complying with the requirements
of the Mortgage or loan agreement, (a) the related Mortgaged Property, or
any controlling interest in the related Mortgagor, is directly transferred
or sold (other than by reason of family and estate planning transfers,
transfers by devise, descent or operation of law upon the death or
incapacity of a member, general partner or shareholder of the related
Mortgagor, transfers of less than a controlling interest in a mortgagor,
issuance of non-controlling new equity interests, transfers among existing
members, partners or shareholders in the Mortgagor or an affiliate
thereof, transfers among affiliated Mortgagors with respect to
cross-collateralized and cross-defaulted Mortgage Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting
the requirements of the Mortgage Loan, such as pledges of ownership
interest that do not result in a change of control) or a substitution or
release of collateral is effected other than in the circumstances
specified in representation (26) below, or (b) the related Mortgaged
Property is encumbered in connection with subordinate financing by a lien
or security interest against the related Mortgaged Property, other than
any existing permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of
the related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf
of the related originator or an affiliate during the 12-month period prior
to the related origination date.
26. Since origination, no material portion of the related
Mortgaged Property has been released from the lien of the related Mortgage
in any manner which materially and adversely affects the value of the
Mortgage Loan or materially interferes with the security intended to be
provided by such Mortgage, and, except with respect to Mortgage Loans (a)
which permit defeasance by means of substituting for the Mortgaged
Property (or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities" within the meaning of Treasury Regulation Section
1.860G-2(a)(8)(i) sufficient to pay the Mortgage Loans (or portions
thereof) in accordance with their terms, (b) where a release of the
portion of the Mortgaged Property was contemplated at origination and such
portion was not considered material for purposes of underwriting the
Mortgage Loan, (c) where release is conditional upon the satisfaction of
certain underwriting and legal requirements and the payment of a release
price that represents adequate consideration for such Mortgaged Property
or the portion thereof that is being released, (d) which permit the
related Mortgagor to substitute a replacement property in compliance with
REMIC Provisions or (e) which permit the release(s) of unimproved
out-parcels or other portions of the Mortgaged Property that will not have
a material adverse affect on the underwritten value of the security for
the
I-8
Mortgage Loan or that were not allocated any value in the underwriting
during the origination of the Mortgage Loan, the terms of the related
Mortgage do not provide for release of any portion of the Mortgaged
Property from the lien of the Mortgage except in consideration of payment
in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof
which (a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the
title policy referred to herein obtained in connection with the
origination of each Mortgage Loan, none of the material improvements which
were included for the purposes of determining the appraised value of the
related Mortgaged Property at the time of the origination of the Mortgage
Loan lies outside of the boundaries and building restriction lines of such
property (except Mortgaged Properties which are legal non-conforming
uses), to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation
of such Mortgaged Property (unless affirmatively covered by title
insurance) and no improvements on adjoining properties encroached upon
such Mortgaged Property to an extent which would have a material adverse
affect on the value of the Mortgaged Property or related Mortgagor's use
and operation of such Mortgaged Property (unless affirmatively covered by
title insurance).
29. Intentionally deleted.
30. No advance of funds has been made other than pursuant to the
loan documents, directly or indirectly, by the Seller to the Mortgagor
and, to the Seller's actual knowledge, no funds have been received from
any Person other than the Mortgagor, for or on account of payments due on
the Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse
outcome of which could reasonably be expected to materially and adversely
affect such Mortgagor's ability to pay principal, interest or any other
amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the
Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under
I-9
applicable law to serve as such, has either been properly designated and
serving under such Mortgage or may be substituted in accordance with the
Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a
Loan Combination, the related Mortgage Note is not secured by any
collateral that secures a mortgage loan that is not in the Trust Fund and
each Mortgage Loan that is cross-collateralized is cross-collateralized
only with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either
not located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is
in full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the
Mortgage Loan as of the Closing Date required to be deposited with the
Seller in accordance with the Mortgage Loan documents have been so
deposited, and to the extent not disbursed or otherwise released in
accordance with the related Mortgage Loan documents, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the Mortgage
Loan, the related Mortgagor was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, and, as of the Cut-off Date, the Seller has no actual knowledge
that the related Mortgagor was not in possession of such licenses, permits
and authorizations.
37. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan
have been in all material respects legal and the servicing and collection
practices used by the Seller or its affiliates with respect to the
Mortgage Loan have met customary industry standards for servicing of
commercial mortgage loans for conduit loan programs.
38. Except for any Mortgage Loan secured by a Mortgagor's
leasehold interest in the related Mortgaged Property, the related
Mortgagor (or its affiliate) has title in the fee simple interest in each
related Mortgaged Property.
39. The Mortgage Loan documents for each Mortgage Loan provide
that each Mortgage Loan is non-recourse to the related Mortgagor except
that the related
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Mortgagor accepts responsibility for fraud and/or other intentional
material misrepresentation. The Mortgage Loan documents for each Mortgage
Loan provide that the related Mortgagor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of rents
collected in advance or received by the related Mortgagor after the
occurrence of an event of default and not paid to the Mortgagee or applied
to the Mortgaged Property in the ordinary course of business,
misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the
related Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of
Treasury Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance
of mortgage collateral, such Mortgage Loan permits defeasance (a) no
earlier than two (2) years after the Closing Date, and (b) only with
substitute collateral constituting "government securities" within the
meaning of Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount
sufficient to make all scheduled payments under the Mortgage Note (or, in
the case of a partial defeasance, in an amount sufficient to make all
scheduled payments with respect to the defeased portion of such Mortgage
Loan). In addition, if such Mortgage contains such a defeasance provision,
it provides (or otherwise contains provisions pursuant to which the holder
can require) that an opinion be provided to the effect that such holder
has a first priority perfected security interest in the defeasance
collateral. The related Mortgage Loan documents permit the lender to
charge all of its expenses associated with a defeasance to the Mortgagor
(including rating agencies' fees, accounting fees and attorneys' fees),
and provide that the related Mortgagor must deliver (or otherwise, the
Mortgage Loan documents contain certain provisions pursuant to which the
lender can require) (i) an accountant's certification as to the adequacy
of the defeasance collateral to make payments under the related Mortgage
Loan for the remainder of its term, (ii) an Opinion of Counsel that the
defeasance complies with all applicable REMIC Provisions, and (iii)
assurances from the Rating Agencies that the defeasance will not result in
the withdrawal, downgrade or qualification of the ratings assigned to the
Certificates. Notwithstanding the foregoing, some of the Mortgage Loan
documents may not affirmatively contain all such requirements, but such
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator
I-11
of such Mortgage Loan was authorized to do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it
originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any
obligation to make any capital contributions to the Mortgagor under the
Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a
Loan Combination, none of the Mortgaged Properties are encumbered, and
none of the Mortgage Loan documents permit the related Mortgaged Property
to be encumbered subsequent to the Closing Date without the prior written
consent of the holder thereof, by any lien securing the payment of money
junior to or of equal priority with, or superior to, the lien of the
related Mortgage (other than Title Exceptions, taxes, assessments and
contested mechanics and materialmen's liens that become payable after the
Cut-off Date of the related Mortgage Loan).
I-12
ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
I-13
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will
be duly recorded no later than thirty (30) days after the Closing Date and
such Ground Lease permits the interest of the lessee thereunder to be
encumbered by the related Mortgage or, if consent of the lessor thereunder
is required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of
a deed in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its
successors or assigns, except termination or cancellation if (a) an event
of default occurs under the Ground Lease, (b) notice thereof is provided
to the mortgagee and (c) such default is curable by the mortgagee as
provided in the Ground Lease but remains uncured beyond the applicable
cure period.
4. To the actual knowledge of the Seller, at the Closing Date,
such Ground Lease is in full force and effect and other than payments due
but not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor
and the lessee requires the lessor to give notice of any default by the
lessee to the mortgagee. The ground lease or ancillary agreement further
provides that no notice of default given is effective against the
mortgagee unless a copy has been given to the mortgagee in a manner
described in the ground lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or
encumbrances superior to, or of equal priority with, the Mortgage,
subject, however, to only the Title Exceptions or (b) is subject to a
subordination, non-disturbance and attornment agreement to which the
mortgagee on the lessor's fee interest in the Mortgaged Property is
subject.
7. A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the interest of the
lessee under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any
extension options, whether or not currently exercised, set forth therein
all of which can be exercised by the mortgagee if the mortgagee acquires
the lessee's rights under the Ground Lease) that extends not less than
twenty (20) years beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related
Mortgage, taken together, any related insurance proceeds or condemnation
award (other than in respect of a total or substantially total loss or
taking) will be applied either to the repair or restoration of all or part
of the related Mortgaged Property, with the mortgagee or a trustee
appointed or approved by it having the right to hold and disburse such
proceeds as repair or restoration progresses (except in cases where a
provision entitling another party to hold and disburse such proceeds would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution), or to the payment or defeasance
of the outstanding principal balance of the Mortgage Loan, together with
any accrued interest (except in cases where a different allocation would
not be viewed as commercially unreasonable by a prudent commercial and
multifamily mortgage lending institution, taking into account the relative
duration of the ground lease and the related Mortgage and the ratio of the
market value of the related Mortgaged Property to the outstanding
principal balance of such Mortgage Loan).
10. The ground lease does not impose any restrictions on
subletting that would be viewed as commercially unreasonable by a prudent
commercial and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
III-1
SCHEDULE III
------------
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
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ANNEX A MORTGAGE
ID# LOAN EXCEPTION
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EXCEPTIONS TO REPRESENTATION 3: TITLE
--------------------------------------------------------------------------------
197 24 Hour Fitness There is a prior lien on an easement tract of the
property secured by the Mortgage in favor of
Massachusetts General Life Insurance Company in the
stated principal amount of $3,750,000.00.
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325 1635 Commons The loan is secured by the Borrower's leasehold
interest in a ground lease Parkway of the Property
dated as of September 1, 1997 between ▇▇▇▇▇ County
Industrial Development Agency, a public benefit
corporation of the State of New York, and Borrower's
predecessor; both the Borrower and the fee owner of
the Property have executed the Mortgage. The Ground
Lease expires in June of 2008, with no options to
extend; at termination, the Borrower is obligated to
purchase the Property for $1.00 and payment of any
taxes due under the PILOT Agreement.
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--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 8: TITLE EXCEPTIONS
--------------------------------------------------------------------------------
197 24 Hour Fitness The Lease between the Borrower (as Lessor) and Q
Clubs Inc. (as Lessee) dated as of January 21, 1998,
is an exception set forth on the title policy, but
the title policy insures against loss sustained if
the lease is not subordinate to Mortgage.
Upon a casualty or condemnation which renders the
Mortgaged Property unsuitable for continued use,
Tenant has right to purchase the Mortgaged Property
or to require a substitution of the Mortgaged
Property under the terms of the Mortgage.
--------------------------------------------------------------------------------
121 JQH Hotel The lien evidenced by Promissory Note B is
Portfolio B-Note subordinate to the lien of Promissory Note A (which
is dated as of June 8, 2006, in the original
principal amount of $152,000,000.00 executed by
▇▇▇▇▇▇▇ of Oklahoma City, LLC, ▇▇▇▇▇▇▇ of Lincoln,
LLC, ▇▇▇▇▇▇▇ of South Carolina, LLC, ▇▇▇▇▇▇▇ of New
Mexico, LLC, ▇▇▇▇▇▇▇ of Tulsa, LLC, and ▇▇▇▇▇▇▇ of
Sioux Falls, LLC).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
296 Big Kmart - The Lease between the predecessor to Borrower (as
Jacksonville Lessor) and Kmart Corporation Inc. (as Lessee) dated
April 17, 1992, is an exception set forth on the
title policy. The Lease provides that the Tenant
shall subordinate its interest to a first mortgage
provided that Tenant's possession shall not be
disturbed absent a breach or termination of the
Lease.
--------------------------------------------------------------------------------
325 1635 Commons A portion of the Property is subject to an Option to
Parkway Purchase in favor of the Town of Macedon dated as of
June 26, 1997. The portion of the property described
in the Option to Purchase may be released at
Borrower's request upon compliance with certain
conditions (see exception to representation 26
below).
--------------------------------------------------------------------------------
265 Big Kmart - The Lease between the predecessor to Borrower (as
▇▇▇▇▇▇▇▇ Lessor) and Kmart Corporation Inc. (as Lessee) dated
May 14, 1992, is an exception set forth on the title
policy. The Lease provides that the Tenant shall
subordinate its interest to a first mortgage provided
that Tenant's possession shall not be disturbed
absent a breach or termination of the Lease.
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--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 12: TITLE INSURANCE
--------------------------------------------------------------------------------
121 JQH Hotel The lien evidenced by Promissory Note B is
Portfolio B-Note subordinate to the lien of Promissory Note A (which
is dated as of June 8, 2006, in the original
principal amount of $152,000,000.00 executed by
▇▇▇▇▇▇▇ of Oklahoma City, LLC, ▇▇▇▇▇▇▇ of Lincoln,
LLC, ▇▇▇▇▇▇▇ of South Carolina, LLC, ▇▇▇▇▇▇▇ of New
Mexico, LLC, ▇▇▇▇▇▇▇ of Tulsa, LLC, and ▇▇▇▇▇▇▇ of
Sioux Falls, LLC).
--------------------------------------------------------------------------------
197 24 Hour Fitness See exception noted in Representation 3 regarding
existing prior lien in favor of Massachusetts General
Life Insurance Company.
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--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 13: INSURANCE
--------------------------------------------------------------------------------
197 24 Hour Fitness The Mortgage does not require business interruption
insurance. The Mortgage provides that compliance by
the Tenant with the insurance requirements set forth
in the Q Clubs lease shall satisfy the Borrower's
insurance requirements under the Mortgage; the Q
Clubs lease requirements for insurance are
substantially similar to the Mortgage requirements
and the Q Clubs lease requirements cover such risks
with coverage in such amounts as are customarily
acceptable to prudent commercial lending institutions
on the security of property comparable to the related
Mortgaged Property. The Mortgage provides that the
Tenant may self-insure provided there is no Event of
Default and the Tenant has a rating from Standard and
Poor's Rating Service of "BBB-" or better.
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--------------------------------------------------------------------------------
Upon a casualty which renders the Mortgaged Property
unsuitable for continued use, Tenant has right to
purchase the Mortgaged Property or to require a
substitution of the Mortgaged Property under the
terms of the Mortgage.
--------------------------------------------------------------------------------
296 Big Kmart - The Mortgage provides that KMart Corporation may
Jacksonville self-insure in accordance with the terms of the Lease
provided there is no Event of Default and KMart's net
worth is in excess of $100,000,000.00.
The Mortgage requires only 6 months of rental
insurance.
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265 Big Kmart - The Mortgage provides that KMart Corporation may
▇▇▇▇▇▇▇▇ self-insure in accordance with the terms of the Lease
provided there is no Event of Default and KMart's net
worth is in excess of $100,000,000.00.
The Mortgage does not require business interruption
insurance.
--------------------------------------------------------------------------------
248 Rite Aid - The Mortgage provides that the tenant, Thrifty
Vancouver, WA Payless, Inc., may self-insure in accordance with the
terms of the Lease.
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EXCEPTIONS TO REPRESENTATION 17: FURTHER ENCUMBRANCES
--------------------------------------------------------------------------------
325 1635 Commons The Mortgage provides that the Property may be
Parkway subject to liens for unpaid PILOT payments (payments
made in lieu of taxes).
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EXCEPTIONS TO REPRESENTATION 19: ENVIRONMENTAL SITE ASSESSMENT
--------------------------------------------------------------------------------
296 Big Kmart - Seller does not possess an environmental report from
Jacksonville origination of the loan, but an environmental site
assessment was performed by an environmental
consulting firm independent of Seller and Seller's
affiliates during the 18 months preceding the Closing
Date for the Mortgaged Property.
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▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ Seller does not possess an environmental report from
Office Complex origination of the loan, but an environmental site
assessment was performed by an environmental
consulting firm independent of Seller and Seller's
affiliates during the 18 months preceding the Closing
Date for the Mortgaged Property.
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325 1635 Commons Seller does not possess an environmental report from
Parkway origination of the loan, but an environmental site
assessment was performed by an environmental
consulting firm independent of Seller and Seller's
affiliates during the 18 months preceding the Closing
Date for the Mortgaged Property.
--------------------------------------------------------------------------------
235 Commerce Seller does not possess an environmental report from
Executive Park I origination of the loan, but an environmental site
assessment was performed by an
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environmental consulting firm independent of Seller
and Seller's affiliates during the 18 months
preceding the Closing Date for the Mortgaged
Property.
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EXCEPTIONS TO REPRESENTATION 23: DUE ON SALE/TRANSFER
--------------------------------------------------------------------------------
296 Big Kmart - The Mortgage provides that the interests in the
Jacksonville Borrower may be transferred between and among the
President of the General Partner of the Borrower, the
beneficiaries of the Trust which is the limited
partner of the Borrower, and any of their lineal
descendants and that the Property may be transferred
to an SPE under the control of any of the above
parties or their family members; these provisions
specifically relate to the principals and
beneficiaries of the original borrower.
--------------------------------------------------------------------------------
265 Big Kmart - The Mortgage provides that the interests in the
▇▇▇▇▇▇▇▇ Borrower or the Property may be transferred between
and among the immediate family members or lineal
descendants of the Trustee of the General Partner
(▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇) or trusts established for any
of the parties. The Property may be transferred to
any partner of The ▇▇▇▇▇▇▇▇ Company (original
borrower). These provisions specifically relate to
the principals and beneficiaries of the original
borrower.
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EXCEPTIONS TO REPRESENTATION 26: RELEASE OF MORTGAGED PROPERTY
--------------------------------------------------------------------------------
197 24 Hour Fitness The Borrower has the right to substitute Replacement
Property for the Mortgaged Property upon the
occurrence of certain events (significant casualty or
condemnation, economic unsuitability and adverse
environmental conditions) pursuant to the Mortgage.
--------------------------------------------------------------------------------
325 1635 Commons Under the Loan Documents, the Borrower has the right
Parkway to the release of certain unimproved property
provided certain conditions are met (including no
Event of Default has occurred and is continuing and
for the preceding 12 months the Debt Service Coverage
Ratio is equal to or greater than 1.3/1.0).
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--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 33: CROSS-COLLATERALIZED OBLIGATIONS
--------------------------------------------------------------------------------
121 JQH Hotel The indebtedness evidenced by Promissory Note B is
Portfolio B-Note secured by collateral which also secures payment of
the indebtedness evidenced by Promissory Note A
(which is dated as of June 8, 2006, in the original
principal amount of $152,000,000.00 executed by
▇▇▇▇▇▇▇ of Oklahoma City, LLC, ▇▇▇▇▇▇▇ of Lincoln,
LLC, ▇▇▇▇▇▇▇ of South Carolina, LLC, ▇▇▇▇▇▇▇ of New
Mexico, LLC, ▇▇▇▇▇▇▇ of Tulsa, LLC, and ▇▇▇▇▇▇▇ of
Sioux Falls, LLC). Promissory Note A is secured by
collateral that is not a part of the Trust Fund and
is not sold pursuant to this Agreement.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 34: FLOOD INSURANCE
--------------------------------------------------------------------------------
197 24 Hour Fitness The Mortgage has no deductible requirement for
required flood insurance.
--------------------------------------------------------------------------------
265 Big Kmart - The Mortgage does not require flood insurance.
▇▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
296 Big Kmart - The Mortgage does not require flood insurance.
Jacksonville
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 39: NON-RECOURSE EXCEPTIONS
--------------------------------------------------------------------------------
197 24 Hour Fitness The Borrower's liability for fraud and material
misrepresentation is limited to losses incurred. The
Borrower's liability for breach of environmental
covenants is limited to environmental matters caused
by Borrower. There is no liability of Borrower for
misappropriation of insurance proceeds or
condemnation awards (applicable provision in Mortgage
has incorrect defined term).
--------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ The Borrower's liability for fraud and material
Office Complex misrepresentation is limited to losses incurred.
--------------------------------------------------------------------------------
235 Commerce The Borrower's liability for fraud and material
Executive Park I misrepresentation is limited to losses incurred.
--------------------------------------------------------------------------------
325 1635 Commons The Borrower's liability for fraud and material
Parkway misrepresentation is limited to losses incurred. The
fee owner of the Property has no recourse liability.
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EXCEPTIONS TO REPRESENTATION 42: DEFEASANCE
--------------------------------------------------------------------------------
197 24 Hour Fitness The Loan Documents provide that the mortgage
collateral may be defeased at any time after January
31, 2001 upon sixty (60) days' written notice.
--------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ The Loan Documents provide that the mortgage
Office Complex collateral may be defeased at any time after the
earlier of 42 months from origination (March 2, 2001)
or 2 years after start-up date.
--------------------------------------------------------------------------------
235 Commerce The Loan Documents provide that the mortgage
Executive Park I collateral may be defeased at any time after the
earlier of 42 months from origination (July 23, 2001)
or 2 years after start-up date.
--------------------------------------------------------------------------------
325 1635 Commons The Loan Documents provide that the mortgage
Parkway collateral may be defeased at any time after the
earlier of 42 months from origination (June 20, 2001)
or 2 years after start-up date.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXCEPTIONS TO REPRESENTATION 45: ENCUMBRANCES
--------------------------------------------------------------------------------
197 24 Hour Fitness See exception noted in Representation 3 regarding
existing prior lien in favor of Massachusetts General
Life Insurance Company.
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SCHEDULE IV
EXCEPTIONS TO GROUND LEASE REPRESENTATIONS AND WARRANTIES
IV-1
ANNEX A
MORTGAGE LOAN SCHEDULE
A-1