EXHIBIT 99.2
Countrywide Mortgage Loan Purchase Agreement
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of January 1, 2005
(the "Agreement"), is entered into between COUNTRYWIDE COMMERCIAL REAL ESTATE
FINANCE, INC. (the "Seller") and Wachovia Commercial Mortgage Securities, Inc.
(the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), into a trust fund
(the "Trust Fund"), the beneficial ownership of which will be evidenced by
multiple classes (each, a "Class") of mortgage pass-through certificates (the
"Certificates"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of January
1, 2005, among the Purchaser, as depositor, Wachovia Bank, National Association,
as Master Servicer and a Special Servicer, GMAC Commercial Mortgage Corporation,
as a Special Servicer and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee. Capitalized terms
used but not defined herein (including the Schedules attached hereto) have the
respective meanings set forth in the Pooling and Servicing Agreement.
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 of $242,694,125 (the "Countrywide Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received. The Countrywide
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 $2,063,442,241 (subject to a variance of plus or minus 5.0%). The
purchase and sale of the Mortgage Loans shall take place January 27, 2005, 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 be equal to (i) % of the Countrywide Mortgage Loan
Balance as of the Cut-Off Date, plus (ii) $1,006,340, which amount represents
the amount of interest accrued on the Countrywide Mortgage Loan Balance at the
related Net Mortgage Rate for the period from and including the Cut-Off Date up
to but not including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
Aggregate Purchase Price and satisfaction 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 proceeds.
(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 on or 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 to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) 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, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2005-C16" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or 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 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), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "▇▇▇▇▇ Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2005-C16", or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "▇▇▇▇▇ Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2005-C16", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the 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 marked version of 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 satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such 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 prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of ▇▇▇▇▇ Fargo Bank, N.A.,
as trustee for the registered holders of Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series 2005-C16, as
assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease and (b) any loan
guaranty, indemnity, ground lessor estoppel or environmental insurance
policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan; and
(xiii) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each Mortgage Note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. 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 Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller) relating to each Mortgage Loan and
in the Seller's possession (the "Additional Mortgage Loan Documents") that are
not required to be delivered to the Trustee shall promptly be delivered or
caused to be delivered by the Seller to the Master Servicer or at the direction
of the Master Servicer to the appropriate sub-servicer, together with any
related escrow amounts and reserve amounts.
(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.
(g) On the Closing Date, the Seller shall pay to the Master Servicer
for deposit into the Interest Reserve Account an amount equal to $37,383, which
represents the Initial Interest Reserve Account Deposit for its Interest Reserve
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 California 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 certificate of incorporation or bylaws,
(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;
(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 condition (financial or
other) or operations of the Seller or its properties 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 certificate of incorporation, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would, in the Seller's reasonable and good
faith judgment, materially and adversely affect the ability of the Seller
to perform its obligations under this Agreement or that requires the
consent of any third person to the execution 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 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) 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 consisting of a cash amount equal
to the Aggregate Purchase Price. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the Purchaser
with any intent to hinder, delay or defraud any of the creditors of the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I for the benefit of the Purchaser and the Trustee for the
benefit of the Certificateholders as of the Closing Date, with respect to (and
solely with respect to) each Mortgage Loan, which representations and warranties
are subject to the exceptions set forth on Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Trustee an amount, to
be held in trust in a Special Reserve Account pursuant to the Pooling and
Servicing Agreement, equal to 25% of the Stated Principal Balance of the related
Mortgage Loan on such date. Any funds or letter of credit deposited pursuant to
clauses (2) and (3) shall be held by the Trustee until the earlier of (x) the
date on which the Master Servicer certifies to the Trustee and the Controlling
Class Representative that such exception has been cured (or the Trustee
certifies the same to the Controlling Class Representative), at which time such
funds or letter of credit, as applicable, shall be returned to the Seller and
(y) thirty (30) Business Days or, if the Controlling Class Representative has
extended the cure period, forty-five (45) Business Days after the Closing Date;
provided, however, that if such exception is not cured within such thirty (30)
Business Days or forty-five (45) Business Days, as the case may be, (A) in the
case of clause (2), the Trustee shall retain the funds or letter of credit, as
applicable, or (B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan and any letter of credit will be returned to the
Seller.
If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a Mortgage Loan, then the Seller shall not later than 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 90 days from the date
that any party to the Pooling and Servicing Agreement discovers such Document
Defect or Breach provided the Seller receives such notice in a timely manner),
if such Document Defect or Breach shall materially and adversely affect the
value of the applicable Mortgage Loan, the interest of the Trust therein or the
interests of any Certificateholder, cure such Document Defect or Breach, as the
case may be, in all material respects, which shall include payment` of actual or
provable losses and any Additional Trust Fund Expenses directly resulting from
any such Document Defect or Breach 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) other than with respect to the Thousand Oaks
Medical Office Building Loan (loan number 20), substitute a Qualified Substitute
Mortgage Loan for such affected Mortgage Loan not later than the end of such
90-day period (and in no event later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount in connection therewith; provided, however, that
unless the Breach would cause the Mortgage Loan not to be a Qualified Mortgage,
and if such 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, such
Seller shall have an additional 90 days to complete such cure (or, failing such
cure, to repurchase or substitute 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 no Document
Defect (other than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground Lease, any letter of credit, any franchise agreement, any comfort
letter and (if required) any comfort letter transfer documents (collectively,
the "Core Material Documents")) shall be considered to materially and adversely
affect the value of the related Mortgage Loan, the interests of the Trust
therein or the interests of any Certificateholder unless the document with
respect to which the Document Defect exists is required in connection with an
imminent enforcement of the mortgagee's rights or remedies under the related
Mortgage Loan, defending any claim asserted by any borrower or third party with
respect to the Mortgage Loan, establishing the validity or priority of any lien
or any collateral securing the Mortgage Loan or for any immediate significant
servicing obligations; provided, further, with respect to Document Defects which
materially and adversely affect the interests of any Certificateholder, the
interests of the Trust therein or the value of the related Mortgage Loan, other
than with respect to Document Defects relating to the Core Material Documents,
any applicable cure period following the initial 90 day cure period may be
extended by the Master Servicer or the Special Servicer if the document involved
is not needed imminently. Such extension will end upon 30 days notice of such
need as reasonably determined by the Master Servicer or Special Servicer (with a
possible 30 day extension if the Master Servicer or Special Servicer agrees that
the Seller is diligently pursuing a cure). The Seller shall cure all Document
Defects which materially and adversely affect the interests of any
Certificateholder, the interests of the Trust therein or the value of the
related Mortgage Loan, regardless of the document involved, no later than 2
years following the Closing Date; provided that the initial 90 day cure period
referenced in this paragraph may not be reduced. 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 any uncured Document Defect or Breach, the
Seller shall provide the officer's certificate to the Trustee described above as
to the reasons such Document Defect or Breach remains uncured and as to the
actions being taken to pursue cure. Notwithstanding the foregoing, the delivery
of a commitment to issue a policy of lender's title insurance as described in
clause 12 of Schedule I hereof in lieu of the delivery of the actual policy of
lender's title insurance shall not be considered a Document Defect or Breach
with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, 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 any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Breach or Document Defect 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 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 repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee 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 Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
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 otherwise 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 any 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.
(d) 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 Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, 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 substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the 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 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 deleted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to Section 3 of this Agreement. Nothing in this Agreement shall
prohibit the Purchaser or its assigns (including the Master Servicer and/or the
Special Servicer) from pursuing any course of action authorized by the Pooling
and Servicing Agreement while the Purchaser asserts a claim or brings a cause of
action to enforce any rights set forth herein against the Seller.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the Seller in writing of its
intention to liquidate such Defaulted Mortgage Loan or REO Property at least 45
days prior to any such action. If (a) the Seller consents to such sale and
voluntarily agrees to repurchase such Defaulted Mortgage Loan or REO Property or
(b) a court of competent jurisdiction determines that the Seller is liable under
this Agreement to repurchase such Defaulted Mortgage Loan or REO Property, then
such Seller shall remit to the Purchaser an amount equal to the difference if
any of the price of such Defaulted Mortgage Loan or REO Property as sold and the
price at which the Seller would have had to repurchase such Defaulted Mortgage
Loan or REO Property under this Agreement. The Seller shall have 10 Business
Days after receipt of notice to determine whether or not to consent to such
sale. If the Seller does not consent to such sale, the Special Servicer shall
contract with a Determination Party (as defined in the Pooling and Servicing
Agreement) as to the merits of such proposed sale. If the related Determination
Party determines that such proposed sale is in accordance with the Servicing
Standard and the provisions of the Pooling and Servicing Agreement with respect
to the sale of Defaulted Mortgage Loans and REO Properties and, subsequent to
such sale, a court of competent jurisdiction determines that Seller was liable
under this Agreement and required to repurchase such Defaulted Mortgage Loan or
REO Property in accordance with the terms hereof, then the Seller shall remit to
Purchaser an amount equal to the difference (if any) between the proceeds of the
related action and the price at which the Seller would have been obligated to
pay had the Seller repurchased such Defaulted Mortgage Loan or REO Property in
accordance with the terms hereof including the costs related to contracting with
the related Determination Party provided that the foregoing procedure in this
Section 3(f) shall not preclude the Seller from repurchasing the Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the other provisions of this Section
3 (excluding this subsection (f)). If the related Determination Party determines
that the sale of the related Defaulted Mortgage Loan or REO Property is not in
accordance with the Servicing Standards and the provisions of the Pooling and
Servicing Agreement with respect to the sale of Defaulted Mortgage Loans and REO
Properties and the Special Servicer subsequently sells such Mortgage Loan or REO
Property, then the Seller will not be liable for any such difference (nor any
cost of contracting with the Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
90 days of the Seller's receipt of such direction, the amount of any such costs
and expenses borne by the Purchaser, the Certificateholders, the Master
Servicer, the Special Servicer and the Trustee on their behalf that are the
basis of such Breach. Upon its making such deposit, the Seller shall be deemed
to have cured such Breach in all respects. Provided such payment is made in
full, this paragraph describes the sole remedy available to the Purchaser, the
Certificateholders, the Master Servicer, the Special Servicer and the Trustee on
their behalf regarding any such Breach and the Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach.
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 North Carolina. 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 (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the rights
of creditors generally, or (C) general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by the
Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) 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 (A) any term or provision of the
Purchaser's articles of association or bylaws, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (C) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) 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 consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) 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
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.
(g) 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, Charlotte, North Carolina on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of
the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) 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 Purchaser, the Seller, the Underwriters, the Initial
Purchasers 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 shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer 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 shall have the ability to comply with all terms
and conditions and perform all duties and obligations required to be complied
with or performed after the Closing Date;
(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 Closing Date;
and
(f) A letter shall have been received from the independent
accounting firm of KPMG LLP in form satisfactory to the Purchaser, relating to
certain information regarding the Mortgage Loans and Certificates as set forth
in the Prospectus and Prospectus Supplement, respectively.
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 duly executed by the Purchaser and the Seller;
(b) A certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that: (i)
the representations and warranties of the Seller in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on such date; 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 an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser 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) An officer's certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to the effect
that with respect to the Seller, the Mortgage Loans, the related Mortgagors and
the related Mortgaged Properties (i) such officer has carefully examined the
Specified Portions of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
and (ii) such officer has examined the Specified Portions of the Memorandum and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Prospectus Supplement shall consist
of Annex A thereto, the diskette which accompanies the Prospectus Supplement
(insofar as such diskette is consistent with such Annex A) and the following
sections of the Prospectus Supplement (exclusive of any statements in such
sections that purport to summarize the servicing and administration provisions
of the Pooling and Servicing Agreement): "Summary of Prospectus Supplement--The
Parties--The Mortgage Loan Sellers," "Summary of Prospectus Supplement--The
Mortgage Loans," "Risk Factors--The Mortgage Loans," and "Description of the
Mortgage Pool--General," "--Mortgage Loan History," "--Certain Terms and
Conditions of the Mortgage Loans," "--Assessments of Property Condition,"
"--Additional Mortgage Loan Information," "--Twenty Largest Mortgage Loans,"
"--The Mortgage Loan Sellers," "--Underwriting Standards," and
"--Representations and Warranties; Repurchases and Substitutions." The
"Specified Portions" of the last sentence in the Memorandum shall consist of the
Specified Portions of the Prospectus Supplement and the first full paragraph on
page "iv" of the Memorandum and the first sentence in the second full paragraph
on page "iv" of the Memorandum.
(e) The certificate of incorporation of the Seller, and an original
or copy of a certificate of good standing of the Seller issued by the State of
California not earlier than sixty (60) days prior to the Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchasers and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may
reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchasers, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus Supplement, the Preliminary Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment of or supplement to any of the
foregoing, (B) any items similar to Computational Materials or ABS Term Sheets
forwarded by the Seller to the Initial Purchasers, or in any revision or
amendment of or supplement to any of the foregoing or (C) the summaries,
reports, documents and other written and computer materials and all other
information regarding the Mortgage Loans or the Seller furnished by the Seller
for review by prospective investors (the items in (A), (B) and (C) above being
defined as the "Disclosure Material"), or (ii) arise out of or are based upon
the omission or alleged omission to state therein (in the case of Computational
Materials and ABS Term Sheets, when read in conjunction with the Prospectus
Supplement, in the case of items similar to Computational Materials and ABS Term
Sheets, when read in conjunction with the Memorandum, and in the case of any
summaries, reports, documents, written or computer materials, or other
information contemplated in clause (C) above, when read in conjunction with the
Memorandum) a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; but, with respect to the Disclosure Material described in
clauses (A) and (B) of the definition thereof, only if and to the extent that
(I) any such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon an untrue statement or omission with respect to the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged Properties contained
in the Data File (it being herein acknowledged that the Data File was and will
be used to prepare the Prospectus Supplement and the Preliminary Prospectus
Supplement, including without limitation Annex A thereto, the Memorandum, the
Diskette, any Computational Materials and ABS Term Sheets with respect to the
Registered Certificates and any items similar to Computational Materials and ABS
Term Sheets forwarded to prospective investors in the Non-Registered
Certificates), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission of a material fact occurring in, or with respect
to, such Disclosure Material, is with respect to, or arises out of or is based
upon an untrue statement or omission of a material fact with respect to, the
information regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties and/or the Seller set forth in the Specified Portions of
each of the Prospectus Supplement, the Preliminary Prospectus Supplement and the
Memorandum, (III) any such untrue statement or alleged untrue statement or
omission or alleged omission occurring in, or with respect to, such Disclosure
Material, arises out of or is based upon a breach of the representations and
warranties of the Seller set forth in or made pursuant to Section 3 or (IV) any
such untrue statement or alleged untrue statement or omission or alleged
omission occurring in, or with respect to, such Disclosure Material, arises out
of or is based upon any other written information concerning the characteristics
of the Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties furnished to the Purchaser, the Underwriters or the Initial
Purchasers by the Seller; provided that the indemnification provided by this
Section 7 shall not apply to the extent that such untrue statement or omission
of a material fact was made as a result of an error in the manipulation of, or
in any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the related
Mortgaged Properties set forth in the Data File or Annex A to the Prospectus
Supplement or the Preliminary Prospectus Supplement to the extent such
information was not materially incorrect in the Data File or such Annex A, as
applicable, including without limitation the aggregation of such information
with comparable information relating to the Other Mortgage Loans.
Notwithstanding the foregoing, the indemnification provided in this Section 7(a)
shall not inure to the benefit of any Underwriter or Initial Purchaser (or to
the benefit of any person controlling such Underwriter or Initial Purchaser)
from whom the person asserting claims giving rise to any such losses, claims,
damages, expenses or liabilities purchased Certificates if (x) the subject
untrue statement or omission or alleged untrue statement or omission made in any
Disclosure Material (exclusive of the Prospectus or any corrected or amended
Prospectus or the Memorandum or any corrected or amended Memorandum) is
eliminated or remedied in the Prospectus or the Memorandum (in either case, as
corrected or amended, if applicable), as applicable, and (y) a copy of the
Prospectus or Memorandum (in either case, as corrected or amended, if
applicable), as applicable, shall not have been sent to such person at or prior
to the written confirmation of the sale of such Certificates to such person, and
(z) such Underwriter or Initial Purchaser received electronically or in writing
notice of such untrue statement or omission and updated information concerning
the untrue statement or omission at least one Business Day prior to the written
confirmation of such sale. The Seller shall, subject to clause (c) below,
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity will
be in addition to any liability which the Seller may otherwise have.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-120922 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus dated January
19, 2005, as supplemented by the prospectus supplement dated January 19, 2005
(the "Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the prospectus
supplement dated January 1, 2005, relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated January 19, 2005, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class A-J, Class B, Class C
and Class D Certificates; "Non-Registered Certificates" shall mean the
Certificates other than the Registered Certificates; "Computational Materials"
shall have the meaning assigned thereto in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "▇▇▇▇▇▇ Letters"); "ABS Term Sheets" shall have the meaning
assigned thereto in the no-action letter dated February 17, 1995 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇ Letters, the
"No-Action Letters"); "Diskette" shall mean the diskette or compact disc
attached to each of the Prospectus and the Memorandum; and "Data File" shall
mean the compilation of information and data regarding the Mortgage Loans
covered by the Agreed Upon Procedures Letters dated January 1, 2005 and rendered
by PRICE WATERHOUSE COOPERS LLP (a "hard copy" of which Data File was initialed
on behalf of the Seller and the Purchaser).
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Seller (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchasers, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchasers' obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or an Initial Purchaser within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or Initial
Purchaser's officers and directors, shall have the same rights to contribution
as such Underwriter or Initial Purchaser, as the case may be, and each director
of the Seller and each person, if any who controls the Seller within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Seller.
(e) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchasers, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchasers, and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchasers and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. 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 Countrywide Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a preliminary and final Prospectus, Term Sheet and Memorandum
relating to the Certificates; (iii) the initial fees, costs, and expenses of the
Trustee (including reasonable attorneys' fees); (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 and the Certificates included in
the Prospectus, the Memorandum and any related Computational Materials or ABS
Term Sheets, including in respect of 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
Underwriters or Initial Purchasers; provided, however, Seller shall pay (or
shall reimburse the Purchaser to the extent that the Purchaser has paid) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof with respect to the Seller's Mortgage
Loans. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such expense.
SECTION 9. 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 Certificate
Account, the Distribution Account or, if established, the REO Account (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 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, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement.
SECTION 10. Covenants of Purchaser. The Purchaser shall provide the
Seller with all forms of Disclosure Materials (including the final form of the
Memorandum and the preliminary and final forms of the Prospectus Supplement)
promptly upon any such document becoming available.
SECTION 11. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 12. 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 13. 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 14. 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 15. 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 16. 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 17. 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 18. 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, the Underwriters and the Initial Purchasers (each as intended third
party beneficiaries hereof) and their permitted successors and assigns, and the
officers, directors and controlling persons referred to in Section 7. This
Agreement is enforceable by the Underwriters, the Initial Purchasers and the
other third party beneficiaries hereto in all respects to the same extent as if
they had been signatories hereof.
SECTION 19. 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, or third party beneficiary,
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 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP in making available all information and taking all steps
reasonably necessary to permit such accountants to deliver the letters required
by the Underwriting Agreement.
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
COUNTRYWIDE COMMERCIAL REAL ESTATE
FINANCE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
telecopy no. ▇▇▇-▇▇▇-▇▇▇▇
with a copy to ▇▇▇▇ ▇▇▇▇▇
telecopy no. 212-909-5870
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Address for Notices:
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule I, the phrases "to the knowledge of
the Seller" or "to the Seller's knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. Also, for purposes of these
representations and warranties, the phrases "to the actual knowledge of the
Seller" or "to the Seller's actual knowledge" shall mean, except where otherwise
expressly set forth below, the actual state of knowledge of the Seller or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
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 and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan 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.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable 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, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. 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 (other than those rights to servicing and related
compensation as reflected in the Mortgage Loan Schedule) free and clear of
any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is 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
(i) 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 rights and benefits
afforded thereby and (ii) 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. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an assignment of leases.
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, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority 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 set forth in paragraph
(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, water charges, sewer rents and assessments
not yet due and payable, (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 paragraph (12) below or appearing of
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, (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) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, 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.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
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 to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the 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, 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 priority 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 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. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
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 mortgage lenders, but not less than $1 million. An
architectural or engineering consultant has performed an analysis of each
of the Mortgaged Properties located in seismic zones 3 or 4 in order to
evaluate the structural and seismic condition of such property, for the
sole purpose of assessing the probable maximum loss ("PML") for the
Mortgaged Property in the event of an earthquake. In such instance, the
PML was based on a 475 year lookback with a 10% probability of exceedance
in a 50 year period. If the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained by an insurer
rated at least "A-:V" (or the equivalent) by A.M. Best Company or "BBB-"
(or the equivalent) from S&P or Fitch. If the Mortgaged Property is
located in Florida or within 25 miles of the coast of Texas, Louisiana,
Mississippi, Alabama, Georgia, North Carolina or South Carolina such
Mortgaged Property is insured by windstorm insurance in an amount at least
equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost, of the improvements located on the related Mortgaged
Property. Such insurance is required by the Mortgage or related Mortgage
Loan documents and was in full force and effect with respect to each
related Mortgaged Property at origination and to the knowledge of the
Seller, all insurance coverage required under each Mortgage or related
Mortgage Loan documents is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
related Mortgage Loan documents, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property with mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan and accrued interest thereon. To
the Seller's actual knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required. The insurance policies contain a standard mortgagee clause
naming the originator of the related Mortgage Loan, its successors and
assigns as loss payees in the case of property insurance policies and
additional insureds in the case of liability insurance policies and
provide that they are not terminable and may not be reduced without 30
days prior written notice to the mortgagee (or, with respect to
non-payment of premiums, 10 days prior written notice to the mortgagee) or
such lesser period as prescribed by applicable law. Each Mortgage or
related Mortgage Loan documents require 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 the Mortgagor fails to do so. Additionally,
for any Mortgage Loan having an unpaid principal balance equal to or
greater than $15,000,000, the Insurer has a claims paying ability rating
from S&P or Fitch of not less than "A-" (or the equivalent) or A.M. Best
of not less than "A-:V" (or the equivalent).
14. (A) Other than payments due but not yet 30 days or more delinquent, 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 (B) 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 no such waiver has
been granted since the later of: (a) the date upon which the due diligence
file related to the applicable Mortgage Loan was delivered to Cadim TACH
Inc., or an affiliate, or (b) the date of the origination of such Mortgage
Loan, 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 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, 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. Each related Mortgage or related Mortgage Loan documents do not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation except as expressly described in such
Mortgage or related Mortgage Loan documents.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3)of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
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 (2) 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 the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
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 (b)
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. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan and if operated in accordance with Treasury Regulations
Section 1.856-6, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials (ASTM) standards) 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, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material 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 either (i) an escrow of 100% or more 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
borrower has covenanted in the Mortgage Loan documents to perform such
work), (ii) the related borrower 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 borrower has provided an
environmental insurance policy, (iv) an operations and maintenance plan
has been or will be implemented or (v) such conditions or circumstances
were investigated further and based upon such additional investigation, a
qualified environmental consultant recommended no further investigation or
remediation. 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 or insurance broker issuing such
policy prior to the issuance of such policy. The Mortgage Loan documents
require the borrower to comply with all applicable environmental laws and
each Mortgagor has agreed to indemnify the mortgagee for any losses
resulting from any material, adverse environmental condition or failure of
the Mortgagor to abide by such laws or has provided environmental
insurance.
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 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 law affecting
the right of creditors and the application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except in respect to each Co-Lender
Loan) and contains no equity participation by the lender 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.
23. The Mortgage or related Mortgage Loan documents contain a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the prior written
consent of the holder of the Mortgage, either the related Mortgaged
Property, or any equity interest in the related Mortgagor, is directly or
indirectly transferred, sold or pledged, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest (as such term is defined in the related Mortgage Loan documents)
in the Mortgagor, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to Crossed
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 interests that do not result in a change of control).
The Mortgage or related Mortgage Loan documents require the Mortgagor to
pay all reasonable fees and expenses associated with securing the consents
or approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
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 and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to Cadim TACH Inc., or an affiliate.
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. The terms of the related Mortgage or related Mortgage Loan
documents do not provide for release of any material portion of the
Mortgaged Property from the lien of the Mortgage except (a) in
consideration of payment therefor of not less than 125% of the related
allocated loan amount of such Mortgaged Property, (b) upon payment in full
of such Mortgage Loan, (c) upon defeasance permitted under the terms of
such Mortgage Loan by means of substituting for the Mortgaged Property
(or, in the case of a Mortgage Loan secured by multiple Mortgaged
Properties, one or more of such Mortgaged Properties) "government
securities", as defined in the Investment Company Act of 1940, as amended,
sufficient to pay the Mortgage Loan in accordance with its terms, (d) upon
substitution of a replacement property with respect to such Mortgage Loan
as set forth on Schedule 26, (e) where release is conditional upon the
satisfaction of certain objective underwriting and legal requirements, the
satisfaction of which would be acceptable to a reasonably prudent
commercial mortgage lender and the payment of a release price that
represents at least 125% of the appraised value of such Mortgaged Property
or (f) releases of unimproved out-parcels or other portions of the
Mortgaged Property which will not have a material adverse effect on the
underwritten value of the security for the Mortgage Loan and which were
not afforded any value in the appraisal obtained at the origination of the
Mortgage Loan.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws constitutes a legal
non-conforming use or structure which, in the event of casualty or
destruction, may be restored or repaired to the full extent of the use or
structure at the time of such casualty, or for which law and ordinance
insurance coverage has been obtained in amounts customarily required by
prudent commercial mortgage lenders, or such non-conformity does not
materially and adversely affect the use, operation or value 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 any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
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. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or prepayment premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either not located
in a federally designated special flood hazard area or, if so located, the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such policy is in full
force and effect in an amount no less than the lesser of (i) the original
principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. 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, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. 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, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the borrower to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. Except for Mortgagors under Mortgage Loans the Mortgaged Property with
respect to which includes a Ground Lease, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
40. 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 and an additional guarantor who is a natural person
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, 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.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, 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.
42. With respect to such Mortgage Loan, any prepayment premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) 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. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. 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) (a) 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, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) 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.
44. 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.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the Mortgage Loan
documents permits 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 materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. Each related Mortgaged Property constitutes one or more complete separate
tax lots (or the related Mortgagor has covenanted to obtain separate tax
lots and a Person has indemnified the mortgagee for any loss suffered in
connection therewith or an escrow of funds in an amount sufficient to pay
taxes resulting from a breach thereof has been established) or is subject
to an endorsement under the related title insurance policy.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither Seller nor
any prior holder of the Mortgage Loan participated in any fraud or
intentional material misrepresentation with respect to the Mortgage Loan.
To Seller's knowledge, no Mortgagor or guarantor originated a Mortgage
Loan.
50. Each Mortgage or related Mortgage Loan documents require the Mortgagor
upon request to provide the owner or holder of the Mortgage with quarterly
(except for some Mortgage Loans with an original principal balance less
than $5,000,000) and annual operating statements (or a balance sheet and
statement of income and expenses, rent rolls (if there is more than one
tenant) and related information, which annual financial statements for all
Mortgage Loans with an outstanding principal balance greater than
$20,000,000 are required to be audited by an independent certified public
accountant.
51. Each Mortgaged Property is served by public utilities, water and sewer (or
septic facilities) and otherwise appropriate for the use in which the
Mortgaged Property is currently being utilized.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to (i) or (ii), to the extent required by
such policy or to the extent the failure to make any such disclosure
or deliver any such report would materially and adversely affect the
Mortgagor's ability to recover under such policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect;
(d) such insurance has a term of at least 5 years beyond the maturity
date (or the Anticipated Repayment Date for ARD Loans) of such
Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment for
lead-based paint ("LBP") (in the case of a multifamily property
built prior to 1978), asbestos-containing materials ("ACM") (in the
case of any property built prior to 1985) and radon gas ("RG") (in
the case of a multifamily property) at such Mortgaged Property and
(ii) if such report disclosed the existence of a material and
adverse LBP, ACM or RG environmental condition or circumstance
affecting such Mortgaged Property, then, except as otherwise
described on Schedule II, (A) the related Borrower was required to
remediate such condition or circumstance prior to the closing of the
subject Mortgage Loan, or (B) the related Borrower was required to
provide additional security reasonably estimated to be adequate to
cure such condition or circumstance, or (C) such report did not
recommend any action requiring the expenditure of any material funds
and the related Mortgage Loan documents require the related Borrower
to establish an operations and maintenance plan with respect to such
condition or circumstance after the closing of such Mortgage Loan;
and
(f) rights under such policy inure to the benefit of the Purchaser.
53. Each Mortgage Loan is secured by the fee interest in the related Mortgaged
Property, except with respect to loan numbers 5, 28, 29, 99 and 122 listed
on the Mortgage Loan Schedule, which Mortgage Loan is secured by the
interest of the related Mortgagor as a lessee under a ground lease of a
Mortgaged Property (a "Ground Lease") (the term Ground Lease shall mean
such ground lease, all written amendments and modifications, and any
related estoppels or agreements from the ground lessor and, in the event
the Mortgagor's interest is a ground subleasehold, shall also include not
only such ground sublease but also the related ground lease), but not by
the related fee interest in such Mortgaged Property (the "Fee Interest")
and:
(a) Such Ground Lease or a memorandum thereof has been or will be duly
recorded; 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, and does not restrict the use of the related
Mortgaged Property by such lessee, its successors or assigns, in a
manner that would materially adversely affect the security provided
by the related Mortgage; and there has been no material change in
the terms of such Ground Lease since its recordation, with the
exception of written instruments which are a part of the related
Mortgage File;
(b) Such Ground Lease is not subject to any liens or encumbrances
superior to, or of equal priority with, the related Mortgage, other
than the related Fee Interest and Title Exceptions;
(c) The Mortgagor's interest in such Ground Lease is assignable to the
mortgagee and its successors and assigns upon notice to, but without
the consent of, the lessor thereunder (or, if such consent is
required, it has been obtained prior to the Cut-Off Date) and, in
the event that it is so assigned, is further assignable by the
mortgagee and its successors and assigns upon notice to, but without
the need to obtain the consent of, such lessor (or, if such consent
is required, it has been obtained prior to the Cut-Off Date);
(d) As of the Closing Date such Ground Lease is in full force and
effect, and the Seller has not received notice (nor is the Seller
otherwise aware) that any default has occurred under such Ground
Lease as of the Cut-Off Date;
(e) Seller or its agent has provided the lessor under the Ground Lease
with notice of its lien, and such Ground Lease requires the lessor
to give notice of any default by the lessee to the mortgagee, and
such Ground Lease, further provides that no notice of termination
given under such Ground Lease is effective against such mortgagee
unless a copy has been delivered to such mortgagee in the manner
described in such Ground Lease;
(f) The mortgagee under such Mortgage Loan is permitted a reasonable
opportunity to cure any default under such Ground Lease (including
where necessary, sufficient time to gain possession of the interest
of the lessee under the Ground Lease), which is curable after the
receipt of written notice of any such default, before the lessor
thereunder may terminate such Ground Lease, and all of the rights of
the Mortgagor under such Ground Lease and the related Mortgage
(insofar as it relates to the Ground Lease) may be exercised by or
on behalf of the mortgagee;
(g) Such Ground Lease has a current term (including one or more optional
renewal terms, which, under all circumstances, may be exercised, and
will be enforceable, by the Seller, its successors or assigns) which
extends not less than 10 years beyond the amortization term of the
related Mortgage Loan;
(h) Such Ground Lease requires the lessor to enter into a new lease with
the mortgagee under such Mortgage Loan upon termination of such
Ground Lease for any reason, including rejection of such Ground
Lease in a bankruptcy proceeding;
(i) Under the terms of such Ground Lease and the related Mortgage, taken
together, any related insurance proceeds or condemnation award will
be applied either (i) to the repair or restoration of all or part of
the related Mortgaged Property, with the mortgagee under such
Mortgage Loan or a trustee appointed by it having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling another party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (ii) to
the payment of the outstanding principal balance of such Mortgage
Loan together with any accrued interest thereon;
(j) Such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by a prudent
commercial mortgage lender; and the lessor thereunder is not
permitted, in the absence of an uncured default, to disturb the
possession, interest or quiet enjoyment of any lessee in the
relevant portion of the Mortgaged Property subject to such Ground
Lease for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
(k) Such Ground Lease may not be amended or modified without the prior
consent of the mortgagee under such Mortgage Loan and any such
action without such consent is not binding on such mortgagee, its
successors or assigns.
SCHEDULE II
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
Rep. 5
With respect to the Countrywide loans, 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;
provided that each mortgage loan may contain certain notice requirements.
Rep. 7
With respect to the Countrywide loans, the related Mortgage and
Assignment of Leases is freely assignable; provided that each mortgage loan may
contain certain notice requirements.
Rep. 8
With respect to Loan No. 5, Hotel Gansevoort, the Mortgaged Property
is the subject of litigation filed with the Supreme Court of the State of New
York, County of New York as Index No. 604263/01 entitled MADISON ▇▇▇▇▇▇
ASSOCIATES LLC, a Member of ▇▇▇▇▇▇ GREEN LLC, Suing Individually and in the
right of ▇▇▇▇▇▇ GREEN LLC, and MADISON EQUITIES, LLC, Plaintiffs, against ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ FAMILY
PARTNERSHIP, L.P., GANSEVOORT HOTEL, LLC and ▇▇▇▇▇▇ GREEN LLC, Defendants. There
is a related lis pendens filed in the real property records. The litigation
involves a dispute with respect to the purchase of the Mortgaged Property by the
sponsors of the leasehold Mortgagor. First American Title Insurance Company did
not take the litigation or the related lis pendens as exceptions to coverage.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center, the
borrower is obligated to transfer a portion of the Mortgaged Property
(corresponding to the release parcel explained in the exception to
representation 23 below) to the entity (or an affiliate) which sold borrower the
Mortgaged Property in connection with the loan in connection with a lot
split/subdivision.
Rep. 9
With respect to Loan ▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ Financing
Statements have been forwarded to the escrow agent for filing and will be filed
in the ordinary course.
Except as otherwise provided in this exception to representation 9,
with respect to the Countrywide loans, UCC Financing Statements that have not
been filed and/ or recorded have been submitted (or submitted to a title company
pursuant to escrow instructions) in proper form for filing and recording.
Rep. 12
With respect to Loan No. 62, Park Central Hotel, the Loan closed
December 15, 2004. The final title policy has not yet been issued, but will be
forthcoming in the ordinary course.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center,
according to the survey, the following improvements lie outside or on the
boundaries and building restriction lines of the Mortgaged Property: (1) the
Building on parcels A, B, E, F and G extends onto an easement for a water pipe
line purposes to Desert Hot Springs County Water District and (2) the
transformer on parcel D extends outside of the easement for pole lines granted
to the Southern California Edison Company.
Rep. 13
With respect to Loan No. 122, Harbor Village Plaza, the Ground Lease
provides that all insurance proceeds shall be deposited under the joint control
of the ground landlord and the ground lessee with a mutually acceptably trust
depositary.
With respect to Loan No. 99, Best Buy - Cerritos, the Ground Lease
is silent on what entity holds the insurance proceeds.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇.), the lender acknowledged and agreed that for so long as the Stater lease
shall subsist and the obligations contained in the Stater lease are complied
with in full (i) lender will accept insurance coverage from the tenant under the
Stater lease in form and substance required under the Stater lease and (ii)
lender shall make all insurance proceeds or condemnation awards available to the
tenant under the Stater lease to rebuild or restore following a casualty or
condemnation pursuant to the terms of the Stater lease; provided that: (i) no
Event of Default (as defined in the Stater lease) exists under the Stater lease
and (ii) the Stater lease is not terminated as a result of the casualty or
condemnation. In connection with rebuilding or restoring following any casualty
or condemnation. The Stater lease contains, among other things, the provisions
set forth on Exhibit I attached hereto.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ -- ▇▇▇▇▇▇▇▇▇▇▇
(Hook), the lender acknowledged and agreed that for so long as the Stater lease
shall subsist and the obligations contained in the Stater lease are complied
with in full (i) lender will accept insurance coverage from the tenant under the
Stater lease in form and substance required under the Stater lease and (ii)
lender shall make all insurance proceeds or condemnation awards available to the
tenant under the Stater lease to rebuild or restore following a casualty or
condemnation pursuant to the terms of the Stater lease; provided that: (i) no
Event of Default (as defined in the Stater lease) exists under the Stater lease
and (ii) the Stater lease is not terminated as a result of the casualty or
condemnation. In connection with rebuilding or restoring following any casualty
or condemnation. The Stater lease contains, among other things, the provisions
set forth on Exhibit I attached hereto.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇▇), the lender acknowledged and agreed that for so long as the Stater lease
shall subsist and the obligations contained in the Stater lease are complied
with in full (i) lender will accept insurance coverage from the tenant under the
Stater lease in form and substance required under the Stater lease and (ii)
lender shall make all insurance proceeds or condemnation awards available to the
tenant under the Stater lease to rebuild or restore following a casualty or
condemnation pursuant to the terms of the Stater lease; provided that: (i) no
Event of Default (as defined in the Stater lease) exists under the Stater lease
and (ii) the Stater lease is not terminated as a result of the casualty or
condemnation. The Stater lease contains, among other things, the provisions set
forth on Exhibit I attached hereto.
With respect to Loan No. 56, Northview Plaza, the mortgage loan
documents provide that, notwithstanding the insurance requirements set forth
therein, the existing insurance policies and coverages concerning the Mortgaged
Property as of the origination date of the Mortgage Loan shall be acceptable
until the expiration date of such insurance policies.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇--▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ is
permitted to self-insure for fire and extended perils, business interruption,
and flood insurance and for insurance relating to sprinklers, boilers, air
conditioners, pressure vessels, and similar apparatus, so long as (a) Walgreens
maintains a credit rating of no less than BBB+ as determined by Standard and
Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and the
equivalent rating by ▇▇▇▇▇'▇ Investor Service, Inc. or Fitch, Inc., (b)
Walgreens is the tenant under the Walgreens lease, and (c) the Walgreens lease
is in full force and effect. In addition, Walgreens is required to restore to
the extent set forth in the lease and is entitled to hold and disburse insurance
proceeds.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇▇--▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ is
permitted to self-insure for fire and extended perils, business interruption,
and flood insurance and for insurance relating to sprinklers, boilers, air
conditioners, pressure vessels, and similar apparatus, so long as (a) Walgreens
maintains a credit rating of no less than BBB+ as determined by Standard and
Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and the
equivalent rating by ▇▇▇▇▇'▇ Investor Service, Inc. or Fitch, Inc., (b)
Walgreens is the tenant under the Walgreens lease, and (c) the Walgreens lease
is in full force and effect. In addition, Walgreens is required to restore to
the extent set forth in the lease and is entitled to hold and disburse insurance
proceeds.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
lender agreed that the insurance in place at closing is sufficient,
notwithstanding the requirements in the Loan Agreement, so long as there is no
event of default under the mortgage loan documents.
With respect to Loan No. 29, Portofino Inn & Suites, the lender
agreed that the insurance in place at closing is sufficient, notwithstanding the
requirements in the Loan Agreement, so long as there is no event of default
under the mortgage loan documents.
With respect to the Countrywide loans, the mortgage loan documents
generally require comprehensive general liability insurance that is satisfactory
to lender; all of the Countrywide mortgage loans are covered by at least $1
million of general liability insurance. However, comprehensive general liability
insurance policies for the Mortgage Loans known as the Stater Brothers 1
--Victorville (Bear Valley), Stater Brothers 2 -- Victorville (Hook) and Stater
Brothers 3 --Hesperia (Main St.) have a $250,000 deductible.
Except as otherwise provided in this exception to representation 13,
with respect to the Countrywide loans, the Mortgaged Properties that are
required to be insured by windstorm insurance are in insured in an amount at
least equal to the lesser of (i) the outstanding principal balance of such
Mortgage Loan and (ii) 100% of the full insurable value, or 100% of the
replacement cost (less physical depreciation) of the improvements located on the
related Mortgaged Property.
Rep. 14
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center, the
borrower is required to provide lender with an estoppel and SNDA from ▇▇▇▇▇▇
that is satisfactory to lender, but no set time period for such delivery is
specified.
Rep. 19
With respect to Loan No. 56, Northview Plaza, Mortgagor's obligation
to indemnify the lender for losses resulting from environmental conditions at
the Mortgaged Property excludes any such losses caused solely by the lender's
gross negligence or willful misconduct.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ has no
obligation to indemnify the lender for losses suffered by the lender to the
extent such losses arise or accrue after, and relate solely to the period of
time following, the consummation of a foreclosure (or deed-in-lieu of
foreclosure) of the Mortgaged Property or any transfer of title to the Mortgaged
Property, to the extent such transfer is permitted under the mortgage loan
documents.
With respect to Loan No. 107, Walgreens--Gardena, groundwater
remediation and related activities are ongoing at the property.
Except as otherwise set forth in this exception to representation
19, with respect to the Countrywide loans, the mortgage loan documents require
the borrower to comply in all material respects with all applicable
environmental laws.
Rep. 22
With respect to Loan No. 20, Thousand Oaks Medical Center Building,
the Mortgage Loan is comprised of a senior pooled portion that is part of the
mortgage pool and a subordinate non-pooled portion that is part of the Trust
Fund but is not part of the mortgage pool.
Rep. 23
With respect to Loan No. 57, ▇▇▇▇▇▇ Plaza, any transfer of a direct
or indirect legal or beneficial ownership in Mortgagor that occurs by devise or
bequest or by operation of law upon death of a natural person that was the
holder of such interest to one or more family members of the immediate family of
such interest holder or a trust establish for the benefit of such immediate
family members do not require the related Mortgagor to pay all reasonable fees
and expenses of the lender that result from such transfer.
With respect to Loan No. 5, Hotel Gansevoort, in addition to the
listed permitted transfers, sales and pledges, the mortgage loan documents
permit, among other things, sales of the Mortgaged Property by either Mortgagor
subject to standards regarding the identity of the purchaser and delivery of
documentation in accordance with the mortgage loan documents. The owners of the
Mortgagor are also permitted to obtain mezzanine financing secure by certain
pledges subject to the satisfaction of certain conditions set forth in the
mortgage loan documents.
With respect to Loan No. 20, Thousand Oaks Medical Office Building,
the owners of the Mortgagor are permitted to obtain mezzanine financing secured
by certain pledges of equity interests in the Mortgagor, subject to the
satisfaction of certain conditions set forth in the mortgage loan documents.
With respect to Loan No. 70, Stater Brothers 3 --Hesperia (Main
St.), Borrower can sell the entire Mortgaged Property to a party or parties upon
satisfaction of certain conditions set forth in the mortgage loan documents,
such as (1) lender shall have consented to such transfer, which consent shall
not be conditioned or unreasonably withheld, (2) delivery of a REMIC opinion and
(3) the identity, experience, financial condition and creditworthiness of the
new borrower and replacement guarantors shall be satisfactory to lender in
lender's reasonable discretion. Transfers of interests in borrower are permitted
upon satisfaction of certain conditions set forth in the mortgage loan
documents, such as (1) lender shall have consented to such transfer, which
consent shall not be conditioned or unreasonably withheld and (2) delivery of
opinion letters satisfactory to lender. Transfers and sales of stock in Mesirow
Financial Holdings, Inc. are permitted without lender's consent.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ -- ▇▇▇▇▇▇▇▇▇▇▇
(Hook), Borrower can sell the entire Mortgaged Property to a party or parties
upon satisfaction of certain conditions set forth in the mortgage loan
documents, such as (1) lender shall have consented to such transfer, which
consent shall not be conditioned or unreasonably withheld, (2) delivery of a
REMIC opinion and (3) the identity, experience, financial condition and
creditworthiness of the new borrower and replacement guarantors shall be
satisfactory to lender in lender's reasonable discretion. Transfers of interests
in borrower are permitted upon satisfaction of certain conditions set forth in
the mortgage loan documents, such as (1) lender shall have consented to such
transfer, which consent shall not be conditioned or unreasonably withheld and
(2) delivery of opinion letters satisfactory to lender. Transfers and sales of
stock in Mesirow Financial Holdings, Inc. are permitted without lender's
consent.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇▇), Borrower can sell the entire Mortgaged Property to a party or parties
upon satisfaction of certain conditions set forth in the mortgage loan
documents, such as (1) lender shall have consented to such transfer, which
consent shall not be conditioned or unreasonably withheld, (2) delivery of a
REMIC opinion and (3) the identity, experience, financial condition and
creditworthiness of the new borrower and replacement guarantors shall be
satisfactory to lender in lender's reasonable discretion. Transfers of interests
in borrower are permitted upon satisfaction of certain conditions set forth in
the mortgage loan documents, such as (1) lender shall have consented to such
transfer, which consent shall not be conditioned or unreasonably withheld and
(2) delivery of opinion letters satisfactory to lender. Transfers and sales of
stock in Mesirow Financial Holdings, Inc. are permitted without lender's
consent.
With respect to Loan No. 56, Northview Plaza, in connection with
certain transfers of the Mortgaged Property or direct or indirect interests in
the Mortgagor, Mortgagor's obligation to pay fees and expenses associated with
transactions, including obtaining applicable consents or approvals, is limited
to $25,000.00 for each such transfer (inclusive of any reasonable processing fee
charged by the lender or any servicer of the Mortgage Loan on behalf of the
lender, not to exceed $10,000.00).
With respect to Loan No. 71, ▇▇▇▇▇▇ ▇▇▇▇▇, the owners of the
Mortgagor are permitted to obtain mezzanine financing secured by certain pledges
of equity interests in the Mortgagor, subject to the satisfaction of certain
conditions set forth in the mortgage loan documents.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center, the
borrower is permitted to release a certain release parcel specified in the loan
agreement subject to the satisfaction of certain conditions set forth in the
loan agreement.
With respect to Loan No. 28, Comfort Inn & Suites San Diego, in
addition to the listed permitted transfers, sales and pledges, the mortgage loan
documents permit, among other things, sales of the Mortgaged Property by
Mortgagor subject to standards regarding the identity of the purchaser and
delivery of documentation in accordance with the mortgage loan documents. In
addition, the Mortgage Property can be transferred after an event of default to
a newly formed SPE Entity that is controlled by related family members subject
to certain other conditions and requirements set forth in the mortgage loan
documents.
With respect to Loan No. 29, Portofino Inn & Suites, in addition to
the listed permitted transfers, sales and pledges, the mortgage loan documents
permit, among other things, sales of the Mortgaged Property by Mortgagor subject
to standards regarding the identity of the purchaser and delivery of
documentation in accordance with the mortgage loan documents. In addition, the
Mortgage Property can be transferred after an event of default to a newly formed
SPE Entity that is controlled by related family members subject to certain other
conditions and requirements set forth in the mortgage loan documents.
With respect to the Countrywide Loans, in addition to the listed
permitted transfers the mortgage loan documents permit transfers of worn out or
obsolete furniture, fixtures and equipment.
Rep. 26
With respect to Loan No. 93, 910 & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, the mortgage
loan documents provide for the partial release (by partial defeasance) of either
of the 2 properties securing the Mortgage Loan upon, inter alia, payment of an
amount equal to the greater of (i) 115% of the related allocated loan amount or
(ii) an amount which results in a DSC ratio for the remaining property equal to
at least 1.30:1.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center, the
borrower is permitted to release a certain release parcel specified in the loan
agreement subject to the satisfaction of certain conditions set forth in the
loan agreement.
Rep. 27
With respect to Loan No. 62, Park Central Hotel, according to a PZR
report there is one open case in the City of Miami Beach Code Compliance
Division relating to operating without a conditional use approval for live
entertainment outside on a Veranda. The PZR report further indicates that the
violation may be cured by ceasing said use.
With respect to Loan No. 69, Centinela Fine Arts & Wine Storage
Facility, two additional parking spaces are required.
Rep. 28
With respect to Loan No. 57, ▇▇▇▇▇▇ Plaza, according to the survey,
the following improvements lie outside or on the boundaries and building
restriction lines of the Mortgaged Property: (1) a roof eave encroaches onto
adjoining land; (2) a wall encroaches onto adjoining land by approximately 1
foot; and (3) a concrete patio and unidentified landscaping encroach onto
adjoining land.
With respect to Loan No. 70, Stater Brothers 3 --Hesperia (Main
St.), according to survey, the following improvements lie outside or on the
boundaries and building restriction lines of the Mortgaged Property: (1) gas
meter on the easterly adjoining property extends across the easterly boundary
onto Parcel A of subject property; (2) a 1-story concrete block building shown
as ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ is on the easterly and westerly boundary lines of Parcel A
of subject property; and (3) a block wall along the northerly boundary line of
Parcel A of subject property extends easterly and westerly onto adjoining
property.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ -- ▇▇▇▇▇▇▇▇▇▇▇
(Hook), according to survey, the following improvements lie outside or on the
boundaries and building restriction lines of the Mortgaged Property: (1) a
1-story concrete block building shown as ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ is on the westerly
boundary lines of Parcel A of subject property; and (2) electric panels,
electric vaults, storm drain grates, sewer cleanouts, gas meter, fire sprinkler
hookups and electric manholes are on Parcel A of subject property lying outside
of any easement of record.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇▇), according to survey, the following improvements lie outside or on the
boundaries and building restriction lines of the Mortgaged Property: (1)common
walls on the easterly and westerly boundary lines of an adjoining 1-story
concrete block building; (2) a trash enclosure and block walls on the westerly
boundary line of the property; and (3) an electrical vault on Parcel A extends
northerly and easterly onto the easterly northerly adjoining parcels.
With respect to Loan No. 103, Walgreens--Van Nuys, according to the
survey, the following improvements lie outside or on the boundaries and building
restriction lines of the Mortgaged Property: transformer pad and electrical box
are located over the northeasterly portion of the land.
With respect to Loan No. 107, Walgreens--Gardena, according to the
survey, the following improvements lie outside or on the boundaries and building
restriction lines of the Mortgaged Property: concrete walk encroaches onto
southeast corner of the land.
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center,
according to the survey, the following improvements lie outside or on the
boundaries and building restriction lines of the Mortgaged Property: (1) the
Building on parcels A, B, E, F and G extends onto an easement for a water pipe
line purposes to Desert Hot Springs County Water District and (2) the
transformer on parcel D extends outside of the easement for pole lines granted
to the Southern California Edison Company.
Rep. 29
With respect to Loan ▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, a counsel's opinion
regarding non-consolidation of the fee Mortgagor (the Mortgage Loan involves the
mortgage of both the fee and leasehold interest in the Mortgaged Property) in
any insolvency proceeding involving any other party has not been provided.
With respect to Loan No. 57, ▇▇▇▇▇▇ Plaza, the borrower is a
recycled Single-Purpose Entity.
Rep. 31
With respect to Loan No. 5, Hotel Gansevoort, the Mortgaged Property
is the subject of litigation filed with the Supreme Court of the State of New
York, County of New York as Index No. 604263/01 entitled MADISON ▇▇▇▇▇▇
ASSOCIATES LLC, a Member of ▇▇▇▇▇▇ GREEN LLC, Suing Individually and in the
right of ▇▇▇▇▇▇ GREEN LLC, and MADISON EQUITIES, LLC, Plaintiffs, against ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ FAMILY
PARTNERSHIP, L.P., GANSEVOORT HOTEL, LLC and ▇▇▇▇▇▇ GREEN LLC, Defendants. There
is a related lis pendens filed in the real property records. The litigation
involves a dispute with respect to the purchase of the Mortgaged Property by the
sponsors of the leasehold Mortgagor. First American Title Insurance Company did
not take the litigation or the related lis pendens as exceptions to coverage.
Rep. 37
With respect to Loan ▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, a temporary
certificate of occupancy for the current use of the Mortgaged Property is in
effect. The mortgage loan documents require the leasehold Mortgagor (the
Mortgage Loan involves the mortgage of both the fee and leasehold interest in
the Mortgaged Property) to maintain an effective certificate of occupancy at all
times and to use commercially reasonable efforts to cause a permanent
certificate of occupancy to be issued with respect to the Mortgage Property.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
related Mortgagor is not required to maintain the franchise agreement with
Comfort Inn under the terms of the mortgage loan documents.
With respect to Loan No. 107, Walgreens--Gardena, a temporary
certificate of occupancy for the Mortgaged Property is in effect. The borrower
agreed to obtain a final certificate of occupancy within 90 days after the
closing date of the loan.
Rep. 39
With respect to Loan No. 5, Hotel Gansevoort, the Mortgage Loan is
to the holders of both the fee and the leasehold interests in the Mortgaged
Property and involves a mortgage of both such interests.
Rep. 40
With respect to Loan No. 69, Centinela Fine Arts & Wine Storage
Facility, the Guarantor of the recourse obligations is not a natural person. The
Guarantor is Probity International Corporation, a Delaware corporation.
With respect to Loan No. 45, 428-430 North Rodeo Drive, the
Guarantor of the recourse obligations is not a natural person. The Guarantor is
Probity International Corporation, a Delaware corporation.
With respect to Loan ▇▇. ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, with respect to the
fee Mortgagor, the guarantor as to fraud and/or intentional material
misrepresentation is a Delaware limited liability company. The fee Mortgagor
makes no covenants as to environmental matters and there is therefore no related
indemnity or recourse carveout for environmental matters; instead, the leasehold
Mortgagor makes all of the environmental covenants and the related guarantor
(who is a natural person) provides an environmental indemnity.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇.), the additional guarantor and environmental indemnitor is Mesirow Realty
Sale-Leaseback, Inc, not a natural person.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ -- ▇▇▇▇▇▇▇▇▇▇▇
(Hook), the additional guarantor and environmental indemnitor is Mesirow Realty
Sale-Leaseback, Inc, not a natural person.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇▇), the additional guarantor and environmental indemnitor is Mesirow Realty
Sale-Leaseback, Inc, not a natural person.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
related Mortgagor and the additional guarantor thereunder is not liable for a
breach of the environmental covenants that were given. They are only liable for
the environmental representations and warranties.
With respect to Loan No. 29, Portofino Inn & Suites, the related
Mortgagor and the additional guarantor thereunder is not liable for a breach of
the environmental covenants that were given. They are only liable for the
environmental representations and warranties.
Rep. 43
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇.), the borrower is not required to provide assurances from the Rating
Agencies that a defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the certificates.
With respect to Loan No. 80, Stater Brothers 2 -- Victorville
(Hook), the borrower is not required to provide assurances from the Rating
Agencies that a defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the certificates.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇ --▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇
▇▇▇▇▇▇), the borrower is not required to provide assurances from the Rating
Agencies that a defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the certificates.
Rep. 47
With respect to Loan ▇▇. ▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ Center, two of
the parcels are not separate tax lots; however, a county is in the process of
assigning separate tax lots based on prior lot line adjustments
Rep. 50
With respect to Loan No. 20, Thousand Oaks Medical Office Building,
the Borrower is required to supply audited financial statements only following
an Event of Default; otherwise the Borrower is required to provide annual
financial statements which are certified by Borrower to be true and correct, but
are not audited by an outside firm.
With respect to Loan No. 5, Hotel Gansevoort, the mortgage loan
documents require the leasehold Mortgagor (the Mortgage Loan is to the holders
of both the fee and the leasehold interests in the Mortgaged Property and
involves a mortgage of both such interests) to deliver audited annual financial
statements to the lender within 90 days following the end of each fiscal year.
There is no requirement as to quarterly operating statements or rent rolls,
however, the mortgage loan documents require the leasehold Mortgagor to deliver
to the lender on a monthly basis the monthly profit and loss statements the
leasehold Mortgagor receives from the property manager, and to deliver to the
lender such other information as to the operation of the Mortgaged Property and
the financial affairs of the leasehold Mortgagor as the lender may reasonably
request within 10 business days of such request.
With respect to Loan No. 71, ▇▇▇▇▇▇ ▇▇▇▇▇, the mortgage loan
documents require the Mortgagor to deliver monthly and quarterly, but not
annual, operating statements and other financial information as set forth in the
mortgage loan documents.
Rep. 53
With respect to Loan No. 5, Hotel Gansevoort, the Mortgage Loan is
to the holders of both the fee and the leasehold interests in the Mortgaged
Property and involves a mortgage of both such interests.
With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
Mortgage Loans are made to the leasehold owners in the related Mortgage Property
and the related Mortgages encumber such leasehold interest.
With respect to Loan No. 29, Portofino Inn & Suites, the Mortgage
Loans are made to the leasehold owners in the related Mortgage Property and the
related Mortgages encumber such leasehold interest.
(a) With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
Mortgaged Property is only permitted to be used as a hotel.
(a) With respect to Loan No. 29, Portofino Inn & Suites, the
Mortgaged Property is only permitted to be used as a hotel.
(b) With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
related fee interest is encumbered by a mortgage, but a non-disturbance
agreement was obtained from the fee mortgagee.
(b) With respect to Loan No. 29, Portofino Inn & Suites, the fee
interest is permitted to be mortgaged with the Ground Lease subordinate to such
mortgage, but in connection with such mortgage, the fee owner is required to
obtain a non-disturbance agreement from its mortgagee.
(f) With respect to Loan No. 122, Harbor Village Plaza, all of the
related Mortgagor's rights under the Ground Lease and the Mortgage may not be
exercised by or on behalf of the lender.
(f) With respect to Loan No. 99, Best Buy - Cerritos, all of the
related Mortgagor's rights under the Ground Lease and the Mortgage may not be
exercised by or on behalf of the lender.
(i) With respect to Loan No. 122, Harbor Village Plaza, the Ground
Lease provides that all insurance proceeds shall be deposited under the joint
control of the ground landlord and the ground lessee with a mutually acceptable
trust depositary.
(i) With respect to Loan No. 99, Best Buy - Cerritos, the Ground
Lease is silent on what entity holds the insurance proceeds.
(j) With respect to Loan ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, the
Mortgage Property is not permitted to be sublet by the Mortgagor, but this is a
hotel with no commercial tenant.
(j) With respect to Loan No. 29, Portofino Inn & Suites, the
Mortgage Property is not permitted to be sublet by the Mortgagor, but this is a
hotel with no commercial tenant.
(k) With respect to Loan No. 122, Harbor Village Plaza, the Ground
Lease does not state that amendments and modifications without lender's consent
are not binding on the lender, its successors and assigns.
(k) With respect to Loan No. 99, Best Buy - Cerritos, the Ground
Lease does not state that amendments and modifications without lender's consent
are not binding on the lender, its successors and assigns.
EXHIBIT I
Stater Lease Insurance Information
1. Tenant shall, at its sole cost and expense, maintain (a) "All Risks" property
insurance against risks of direct physical loss, including loss by fire,
lightning and other risks which at the time are included under "Special Form"
coverage, in amounts not less than one hundred percent of the actual replacement
value of the improvements, exclusive of foundations and excavations; (b)
commercial general public liability insurance against claims for bodily injury,
death or property damage occurring on, in or about the premises, in the minimum
amounts of Five Million Dollars for bodily injury or death to any one person,
Ten Million Dollars for any one accident and Five Million Dollars for property
damage to others, or in such greater amounts as are then customary for property
similar in use to the premises; (c) worker's compensation insurance (including
employer's liability insurance, if requested by landlord) to the extent required
by the law of the State of California and to the extent necessary to protect
landlord and the premises against tenant's workers' compensation claims; (d)
explosion insurance in respect of any boilers and similar apparatus located on
the premises in the minimum amount of $500,000 or in such greater amounts as are
then customary; (e) during any period of construction on the premises, builder's
risk insurance on a completed value, non-reporting basis for the total cost of
such altercations or improvements, and worker's compensation insurance as
required by applicable law; and (f) flood hazard insurance if any portion of the
improvements is currently or at any time in the future located in a federally
designated "special flood hazard area." All insurance provided shall be obtained
under valid and enforceable policies, issued by financially sound and
responsible insurance companies authorized to do business in the state in which
the premises is located and approved by landlord, and in the case of property
damage policies, shall name landlord and each mortgagee, as loss payees as their
interest may appear, and in the case of commercial general public liability
policies, shall name landlord and each mortgagee as additional named insured.
Insurance companies must be accorded a rating by A. M. Best Company Inc., of
A:IX or higher.
2. Tenant shall, at its sole cost and expense, rebuild, replace or repair the
premises so as to restore the premises as nearly as practicable to the
condition, character and fair market value thereof immediately prior to a
condemnation or casualty. Tenant shall promptly and diligently pursue such
restoration and shall use its good faith efforts to commence restoration within
one hundred eighty calendar days after the date of the condemnation or casualty
and use its good faith efforts to complete the restoration within one year of
the date of the condemnation or casualty.
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan Number Loan Group Number Property Name
------------------------------------------------------------------------------------------------------------------------------------
5 1 Hotel Gansevoort
20 1 Thousand Oaks Medical Office Building(1)
28 1 Comfort Inn & Suites Hotel Circle
29 1 Portofino Inn & Suites
45 1 428-430 North Rodeo Drive
52 1 ▇▇▇▇▇▇▇'▇ Center Southview
▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Hotel
68 1 Anaheim Hills Medical Center
69 1 Los Angeles Fine Arts & Wine Storage Company
70 1 Stater Bros 3 - Hesperia
71 1 ▇▇▇▇▇▇ ▇▇▇▇▇ Commercial Center
80 1 Stater Bros 2 - Victorville (Hook)
90 1 Breeze Realty
92 1 Stater Bros 1 - Victorville (Bear Valley)
93 1 910 & ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Mar
93.1 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Mar
93.2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ Mar
99 1 Best Buy - Cerritos
103 1 Walgreens - Van Nuys
107 1 Walgreens - Gardena
122 1 Harbor ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
144 1 Desert Hot Springs Town Center
Mortgage Loan Number Address City State Zip Code County
------------------------------------------------------------------------------------------------------------------------------------
5 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ New York
20 401 and ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Ventura
28 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ San Diego
29 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Orange
45 ▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles
52 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
56 10675-10677 ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Dallas
57 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Santa ▇▇▇▇▇
62 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Miami-Dade
68 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Orange
69 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles
70 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ San Bernardino
71 6635, 6655, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
80 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ San Bernardino
90 19-26 & ▇▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ New York
92 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ San Diego
93.1 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ San Diego
93.2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ San Diego
99 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles
103 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles
107 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Los Angeles
122 ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Orange
140 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ Sonoma
144 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Riverside
Mortgage Loan Number Cut-Off Date Loan Balance ($) Monthly P&I Payments ($) Grace Days Mortgage Rate (%)
------------------------------------------------------------------------------------------------------------------------------------
5 67,917,231.72 448,154.94 6.2400%
20 23,950,792.21 135,968.35 5.4800%
28 15,330,522.93 99,181.96 6.0300%
29 15,330,522.93 99,181.96 6.0300%
45 10,966,340.40 61,768.39 5.4000%
52 9,900,000.00 53,630.43 5.0800%
56 8,769,016.48 48,050.31 5.1500%
57 8,275,165.60 47,126.49 5.5000%
62 7,990,398.24 53,070.65 6.3100%
68 7,500,000.00 43,153.32 5.3600%
69 7,477,458.02 42,490.12 5.4800%
70 7,360,000.00 41,420.60 5.4200%
71 7,293,294.46 41,907.77 5.6000%
80 6,000,000.00 33,766.79 5.4200%
90 5,094,405.22 31,505.61 5.9000%
92 4,960,000.00 27,913.88 5.4200%
93 4,914,771.29 27,716.91 5.4200%
93.1
93.2
99 4,785,960.33 29,734.75 5.5900%
103 4,586,907.91 26,756.75 5.7200%
107 4,395,937.99 25,204.01 5.5800%
122 3,810,073.35 24,440.37 5.9400%
140 3,091,437.91 18,288.18 5.8500%
144 2,993,888.62 17,052.50 5.5100%
Original Term to
Mortgage Loan Number Number of Units Unit of Measure Maturity or ARD (Mos.)
------------------------------------------------------------------------------------------------------------------------------------
5 187 Rooms 120
20 85,828 Sq. Ft. 120
28 216 Rooms 120
29 190 Rooms 120
45 7,719 Sq. Ft. 120
52 114,996 Sq. Ft. 84
56 116,015 Sq. Ft. 84
57 42,936 Sq. Ft. 120
62 125 Rooms 120
68 43,680 Sq. Ft. 120
69 38,170 Sq. Ft. 120
70 40,639 Sq. Ft. 142
71 55,501 Sq. Ft. 120
80 40,639 Sq. Ft. 142
90 78,068 Sq. Ft. 120
92 38,722 Sq. Ft. 142
93 14,228 Sq. Ft. 120
93.1 8,387 Sq. Ft.
93.2 5,841 Sq. Ft.
99 46,248 Sq. Ft. 144
103 13,435 Sq. Ft. 120
107 11,687 Sq. Ft. 120
122 43,385 Sq. Ft. 120
140 24,070 Sq. Ft. 120
144 40,540 Sq. Ft. 84
Remaining Term to
Mortgage Loan Number Maturity or ARD (Mos.) Maturity Date or ARD Original Amort Term (Mos.)
------------------------------------------------------------------------------------------------------------------------------------
5 119 12/11/14 300
20 118 11/11/14 360
28 119 12/11/14 300
29 119 12/11/14 300
45 117 10/11/14 360
52 83 12/11/11 360
56 81 10/11/11 360
57 117 10/11/14 360
62 119 12/11/14 300
68 117 10/11/14 336
69 117 10/11/14 360
70 141 10/11/16 360
71 119 12/11/14 360
80 141 10/11/16 360
90 119 12/11/14 324
92 141 10/11/16 360
93 118 11/11/14 360
93.1
93.2
99 142 11/11/16 300
103 117 10/11/14 360
107 119 12/11/14 360
122 119 12/11/14 300
140 117 10/11/14 360
144 82 11/11/11 360
Mortgage Loan Number Remaining Amort Term (Mos.) Ground Lease Master Servicing Fee Rate
------------------------------------------------------------------------------------------------------------------------------------
5 299 Both 0.04000%
20 358 Fee 0.04000%
28 299 Leasehold 0.04000%
29 299 Leasehold 0.04000%
45 357 Fee 0.04000%
52 360 Fee 0.04000%
56 357 Fee 0.04000%
57 357 Fee 0.04000%
62 299 Fee 0.04000%
68 336 Fee 0.04000%
69 357 Fee 0.04000%
70 360 Fee 0.04000%
71 359 Fee 0.04000%
80 360 Fee 0.04000%
90 323 Fee 0.04000%
92 360 Fee 0.04000%
93 358 Fee 0.04000%
93.1
93.2
99 298 Leasehold 0.04000%
103 357 Fee 0.04000%
107 359 Fee 0.04000%
122 299 Leasehold 0.04000%
140 357 Fee 0.04000%
144 358 Fee 0.04000%
Mortgage Loan Number ARD Loans Anticipated Repayment Date
------------------------------------------------------------------------------------------------------------------------------------
5 N
20 N
28 N
29 N
45 N
52 Y 12/11/11
▇▇ ▇
▇▇ ▇
62 Y 12/11/14
▇▇ ▇
▇▇ ▇
▇▇ ▇
71 N
80 N
90 N
92 N
93 N 11/11/14
93.1
93.2
99 Y 11/11/16
▇▇▇ ▇
▇▇▇ ▇
▇▇▇ ▇
▇▇▇ ▇
▇▇▇ ▇
Mortgage Loan Number Additional Interest Rate Loan Originator
------------------------------------------------------------------------------------------------------------------------------------
5 Countrywide
20 Countrywide
28 Countrywide
29 Countrywide
45 Countrywide
52 Greater of initial interest rate plus 5.0% or TCMYI plus 6.25% Countrywide
56 Countrywide
57 Countrywide
62 Greater of initial interest rate plus 5.0% or TCMYI plus 7.15% Countrywide
68 Countrywide
69 Countrywide
70 Countrywide
71 Countrywide
80 Countrywide
90 Countrywide
92 Countrywide
93 CFC
93.1
93.2
99 Greater of initial interest rate plus 5.0% or TCMYI plus 6.4% Countrywide
103 Countrywide
107 Countrywide
122 Countrywide
140 Countrywide
144 Countrywide
Mortgage Loan Number Environmental Insurance Cross Collateralized and Cross Defaulted Loan Flag
------------------------------------------------------------------------------------------------------------------------------------
5 N
20 N
28 N
29 N
45 N
52 N
56 N
57 N
62 N
68 N
69 N
70 N
71 N
80 N
90 N
92 N
93 N
93.1
93.2
99 N
103 N
▇▇▇ ▇
▇▇▇ ▇
140 N
144 N
Mortgage Loan Number Defeasance Loan Early Defeasance Secured by LC
------------------------------------------------------------------------------------------------------------------------------------
5 Y N N
20 Y N N
28 Y N N
29 Y N N
45 Y N N
52 Y N N
56 Y N N
57 Y N N
62 Y N N
68 Y N N
69 Y N N
70 Y N N
71 N N Y
80 Y N N
90 Y N N
92 Y N N
93 Y N N
93.1
93.2
99 Y N N
103 Y N N
107 Y N N
122 Y N N
140 Y N N
144 Y N N
Mortgage Loan Number Interest Accrual Method Lockbox Annual Deposit to Replacement Reserve
------------------------------------------------------------------------------------------------------------------------------------
5 Actual/360 Day 1 463,670
20 Actual/360 Day 1
28 Actual/360 Day 1 216,368
29 Actual/360 Day 1 219,455
45 Actual/360 Day 1 1,467
52 Actual/360 Day 1
56 30/360 Day 1 23,203
57 Actual/360 8,587
62 Actual/360 Day 1 5% of Gross Revenue generated from room revenue
68 Actual/360 Day 1 8,736
69 Actual/360 Springing 6,654
70 Actual/360 Day 1
71 Actual/360 8,325
80 Actual/360 Day 1
90 Actual/360 14,052
92 Actual/360 Day 1 7,744
93 Actual/360 3,557
93.1
93.2
99 Actual/360 Day 1 6,937
103 Actual/360
107 Actual/360
122 Actual/360 8,677
140 Actual/360 4,814
144 Actual/360 8,108
Mortgage Loan Number Initial Deposit to Capital Improvements Reserve Initial TI/LC Escrow Ongoing TI/LC Footnote
------------------------------------------------------------------------------------------------------------------------------------
5
20 189,840 (2)
28
29 1,519
45
52 18,750
56 23,750
57 1,250
62 2,750
68 19,431 5,460 (2)
69 121,988
70
71 41,600
80
90 100,000
92
93 10,250 41,775 (2)
93.1
93.2
99
103 15,000
107 15,000
122 154,945 3,615 (2)
140 2,267 (2)
144 (2)
(1) One Mortgage Loan (loan number 20), includes a non-pooled component of the
trust which represents the Class TO certificate.
(2) In addition to any such escrows funded at loan closing for potential
TI/LC, these Mortgage Loans require funds to be escrowed during some or all
of the loan term for TI/LC expenses, which may be incurred during the loan
term. In certain instances, escrowed funds may be released to the borrower
upon satisfaction of certain leasing conditions.