EXHIBIT 10.5
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
PURCHASER
PNC BANK, NATIONAL ASSOCIATION,
SELLER
FORM OF MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of March 1, 2006
Fixed Rate Mortgage Loans
Series 2006-LDP6
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This Mortgage Loan Purchase Agreement (this "Agreement"), dated as
of March 1, 2006, is between X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., as purchaser (the "Purchaser"), and PNC Bank, National Association, as
seller (the "Seller").
Capitalized terms used in this Agreement not defined herein shall
have the meanings ascribed to them in the Pooling and Servicing Agreement dated
as of March 1, 2006 (the "Pooling and Servicing Agreement") among the Purchaser,
as depositor (the "Depositor"), Midland Loan Services, Inc., as master servicer,
GMAC Commercial Corporation, as master servicer (each, a "Master Servicer"), LNR
Partners, Inc., Inc., as special servicer (the "Special Servicer"), and Xxxxx
Fargo Bank, N.A., as trustee ( in such capacity, the "Trustee") and as paying
agent (in such capacity, the "Paying Agent"), pursuant to which the Purchaser
will sell the Mortgage Loans (as defined herein) to a trust fund and
certificates representing ownership interests in the Mortgage Loans will be
issued by the trust fund. For purposes of this Agreement, the term "Mortgage
Loans" refers to the mortgage loans listed on Exhibit A and the term "Mortgaged
Properties" refers to the properties securing such Mortgage Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION 1. Sale and Conveyance of Mortgages; Possession of Mortgage
File. Effective as of the Closing Date and upon receipt of the purchase price
set forth in the immediately succeeding paragraph, the Seller does hereby sell,
transfer, assign, set over and convey to the Purchaser, without recourse
(subject to certain agreements regarding servicing as provided in the Pooling
and Servicing Agreement, subservicing agreements permitted thereunder and that
certain Servicing Rights Purchase Agreement, dated as of the Closing Date hereof
between the applicable Master Servicer and the Seller) all of its right, title,
and interest in and to the Mortgage Loans described in Exhibit A, including all
interest and principal received on or with respect to the Mortgage Loans after
the Cut-off Date (other than payments of principal and interest first due on the
Mortgage Loans on or before the Cut-off Date). Upon the sale of the Mortgage
Loans, the ownership of each related Mortgage Note, the Mortgage and the other
contents of the related Mortgage File will be vested in the Purchaser and
immediately thereafter the Trustee and the ownership of records and documents
with respect to the related Mortgage Loan prepared by or which come into the
possession of the Seller (other than the records and documents described in the
proviso to Section 3(a) hereof) shall immediately vest in the Purchaser and
immediately thereafter the Trustee. The Seller's records will accurately reflect
the sale of each Mortgage Loan to the Purchaser. On the Closing Date, the Seller
shall also deliver to the Depositor an amount equal to $94,754.29, which amount
represents the aggregate amount of interest that would have accrued at the
related Net Mortgage Rates during the Due Period ending in April 2006, for those
Mortgage Loans that do not have their first Monthly Payment due until May 2006.
The Depositor will sell the Class X-0, Xxxxx X-0, Class A-3FL, Class 3-B, Class
A-4, Class A-SB, Class A-1A, Class X-2, Class A-M, Class A-J, Class B, Class C
and Class D Certificates (the "Offered Certificates") to the underwriters (the
"Underwriters") specified in the underwriting agreement dated March 24, 2006
(the "Underwriting Agreement") between the Depositor and X.X. Xxxxxx Securities
Inc. ("JPMSI") for itself and as representative of the several underwriters
identified therein, and the Depositor will sell the Class X-1, Class E, Class F
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class P and Class
NR Certificates (the "Private Certificates") to JPMSI, the initial purchaser
(together with the Underwriters, the "Dealers") specified in the certificate
purchase agreement dated March 24, 2006 (the "Certificate Purchase Agreement"),
between the Depositor and JPMSI for itself and as representative of the initial
purchasers identified therein.
The sale and conveyance of the Mortgage Loans is being conducted on
an arms length basis and upon commercially reasonable terms. As the purchase
price for the Mortgage Loans, the Purchaser shall pay to the Seller or at the
Seller's direction in immediately available funds the sum of $180,220,484.86
(which amount is inclusive of accrued interest and exclusive of the Seller's pro
rata portion of the costs set forth in Section 9 hereof). The purchase and sale
of the Mortgage Loans shall take place on the Closing Date.
SECTION 2. Books and Records; Certain Funds Received After the
Cut-off Date. From and after the sale of the Mortgage Loans to the Purchaser,
record title to each Mortgage and the related Mortgage Note shall be transferred
to the Trustee in accordance with this Agreement. Any funds due after the
Cut-off Date in connection with a Mortgage Loan received by the Seller shall be
held in trust for the benefit of the Trustee as the owner of such Mortgage Loan
and shall be transferred promptly to the applicable Master Servicer. All
scheduled payments of principal and interest due on or before the Cut-off Date
but collected after the Cut-off Date, and recoveries of principal and interest
collected on or before the Cut-off Date (only in respect of principal and
interest on the Mortgage Loans due on or before the Cut-off Date and principal
prepayments thereon), shall belong to, and shall be promptly remitted to, the
Seller.
The transfer of each Mortgage Loan shall be reflected on the
Seller's balance sheets and other financial statements as a sale of the Mortgage
Loans by the Seller to the Purchaser. The Seller intends to treat the transfer
of each Mortgage Loan to the Purchaser as a sale for tax purposes.
The transfer of each Mortgage Loan shall be reflected on the
Purchaser's balance sheets and other financial statements as a purchase of the
Mortgage Loans by the Purchaser from the Seller. The Purchaser intends to treat
the transfer of each Mortgage Loan from the Seller as a purchase for tax
purposes.
SECTION 3. Delivery of Mortgage Loan Documents; Additional Costs and
Expenses. (a) The Purchaser hereby directs the Seller, and the Seller hereby
agrees, upon the transfer of the Mortgage Loans contemplated herein, to deliver
on the Closing Date to the Trustee or a Custodian appointed thereby, all
documents, instruments and agreements required to be delivered by the Purchaser
to the Trustee with respect to the Mortgage Loans under Sections 2.01(b) and
2.01(c) of the Pooling and Servicing Agreement, and meeting all the requirements
of such Sections 2.01(b) and 2.01(c), and such other documents, instruments and
agreements as the Purchaser or the Trustee shall reasonably request. In
addition, the Seller agrees to deliver or cause to be delivered to the
applicable Master Servicer, the Servicing File for each Mortgage Loan
transferred pursuant to this Agreement; provided that the Seller shall not be
required to deliver any draft documents, or any attorney client communications
which are privileged communications or constitute legal or other due diligence
analyses, or internal communications of the Seller or its affiliates, or credit
underwriting or other analyses or data.
(b) With respect to the transfer described in Section 1 hereof, if
the Mortgage Loan documents do not require the related Mortgagor to pay any
costs and expenses relating to any modifications to a related letter of credit
which modifications are required to effectuate such transfer (the "Transfer
Modification Costs"), then the Seller shall pay the Transfer Modification Costs
required to transfer the letter of credit to the Trustee as described in such
Section 1; provided that if the Mortgage Loan documents require the related
Mortgagor to pay any Transfer Modification Costs, such Transfer Modification
Costs shall be an expense of the Mortgagor unless such Mortgagor fails to pay
such Transfer Modification Costs after the applicable Master Servicer has
exercised all remedies available under the applicable Mortgage Loan documents to
collect such Transfer Modification Costs from such Mortgagor, in which case the
applicable Master Servicer shall give the Seller notice of such failure and the
Seller shall pay such Transfer Modification Costs.
SECTION 4. Treatment as a Security Agreement. The Seller,
concurrently with the execution and delivery hereof, has conveyed to the
Purchaser, all of its right, title and interest in and to the Mortgage Loans.
The parties intend that such conveyance of the Seller's right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a purchase and sale and not a loan. If such conveyance is deemed to
be a pledge and not a sale, then the parties also intend and agree that the
Seller shall be deemed to have granted, and in such event does hereby grant, to
the Purchaser, a first priority security interest in all of its right, title and
interest in, to and under the Mortgage Loans, all payments of principal or
interest on such Mortgage Loans due after the Cut-off Date, all other payments
made in respect of such Mortgage Loans after the Cut-off Date (except to the
extent such payments were due on or before the Cut-off Date) and all proceeds
thereof and that this Agreement shall constitute a security agreement under
applicable law. If such conveyance is deemed to be a pledge and not a sale, the
Seller consents to the Purchaser hypothecating and transferring such security
interest in favor of the Trustee and transferring the obligation secured thereby
to the Trustee.
SECTION 5. Covenants of the Seller. The Seller covenants with the
Purchaser as follows:
(a) it shall record or cause a third party to record in the
appropriate public recording office for real property the intermediate
assignments of the Mortgage Loans and the Assignments of Mortgage from the
Seller to the Trustee in connection with the Pooling and Servicing Agreement.
All recording fees relating to the initial recordation of such intermediate
assignments and Assignments of Mortgage shall be paid by the Seller;
(b) it shall take any action reasonably required by the Purchaser,
the Trustee or the applicable Master Servicer, in order to assist and facilitate
in the transfer of the servicing of the Mortgage Loans to the applicable Master
Servicer, including effectuating the transfer of any letters of credit with
respect to any Mortgage Loan to the Trustee (in care of the applicable Master
Servicer) for the benefit of Certificateholders. Prior to the date that a letter
of credit with respect to any Mortgage Loan is transferred to the Trustee (in
care of the applicable Master Servicer), the Seller will cooperate with the
reasonable requests of the applicable Master Servicer or Special Servicer, as
applicable, in connection with effectuating a draw under such letter of credit
as required under the terms of the related Mortgage Loan documents; and
(c) if, during such period of time after the first date of the
public offering of the Offered Certificates as in the opinion of counsel for the
Underwriters, a prospectus relating to the Offered Certificates is required by
applicable law to be delivered in connection with sales thereof by an
Underwriter or a Dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus Supplement, including Annexes
X-0, X-0, X-0 and B thereto and the Diskette included therewith, with respect to
any information relating to the Mortgage Loans or the Seller, in order to make
the statements therein, in the light of the circumstances when the Prospectus
Supplement is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus Supplement, including Annexes X-0, X-0, X-0
and B thereto and the Diskette included therewith, with respect to any
information relating to the Mortgage Loans or the Seller, to comply with
applicable law, the Seller shall do all things necessary to assist the Depositor
to prepare and furnish, at the expense of the Seller (to the extent that such
amendment or supplement relates to the Seller, the Mortgage Loans listed on
Exhibit A and/or any information relating to the same, as provided by the
Seller), to the Underwriters such amendments or supplements to the Prospectus
Supplement as may be necessary, so that the statements in the Prospectus
Supplement as so amended or supplemented, including Annexes X-0, X-0, X-0 and B
thereto and the Diskette included therewith, with respect to any information
relating to the Mortgage Loans or the Seller, will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be misleading or
so that the Prospectus Supplement, including Annexes X-0, X-0, X-0 and B thereto
and the Diskette included therewith, with respect to any information relating to
the Mortgage Loans or the Seller, will comply with applicable law. All terms
used in this clause (c) and not otherwise defined herein shall have the meaning
set forth in the Indemnification Agreement, dated as of March 24, 2006 among the
Purchaser and the Seller (the "Indemnification Agreement").
SECTION 6. Representations and Warranties.
(a) The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) it is a national banking association, duly organized, validly
existing, and in good standing under the laws of the United States of
America;
(ii) it has the power and authority to own its property and to carry
on its business as now conducted;
(iii) it has the power to execute, deliver and perform this
Agreement;
(iv) it is legally authorized to transact business in the State of
New York. The Seller is in compliance with the laws of each state, to the
extent applicable to national banking associations, in which any Mortgaged
Property is located to the extent necessary so that a subsequent holder of
the related Mortgage Loan (including, without limitation, the Purchaser)
that is in compliance with the laws of such state would not be prohibited
from enforcing such Mortgage Loan solely by reason of any non-compliance
by the Seller;
(v) the execution, delivery and performance of this Agreement by the
Seller have been duly authorized by all requisite action by the Seller's
board of directors and will not violate or breach any provision of its
organizational documents;
(vi) this Agreement has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable against it in accordance with its terms (except as
enforcement thereof may be limited by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other laws
affecting the enforcement of creditors' rights generally and by general
equitable principles regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vii) there are no legal or governmental proceedings pending to
which the Seller is a party or of which any property of the Seller is the
subject which, if determined adversely to the Seller, would reasonably be
expected to adversely affect (A) the transfer of the Mortgage Loans and
the Mortgage Loan documents, (B) the execution and delivery by the Seller
or enforceability against the Seller of the Mortgage Loans or this
Agreement, or (C) the performance of the Seller's obligations hereunder;
(viii) it has no actual knowledge that any statement, report,
officer's certificate or other document prepared and furnished or to be
furnished by the Seller in connection with the transactions contemplated
hereby (including, without limitation, any financial cash flow models and
underwriting file abstracts furnished by the Seller) was not true and
correct in any material respect when furnished by the Seller; provided,
however, that with respect to any such statement, report, officer's
certificate or other document which contains information that is
corrected, modified or supplemented by a subsequent statement, report,
officer's certificate or other document prepared and furnished by the
Seller, this representation shall be deemed to be made with respect to the
original statement, report, officer's certificate or other document as so
corrected, modified or supplemented;
(ix) it is not, nor with the giving of notice or lapse of time or
both would be, in violation of or in default under any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it or any of its properties is bound,
except for violations and defaults which individually and in the aggregate
would not have a material adverse effect on the transactions contemplated
herein; the sale of the Mortgage Loans and the performance by the Seller
of all of its obligations under this Agreement and the consummation by the
Seller of the transactions herein contemplated do not conflict with or
result in a breach of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Seller is a party
or by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will any such action result in any violation
of the provisions of any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Seller, or any of its properties, except for conflicts, breaches,
defaults and violations which individually and in the aggregate would not
have a material adverse effect on the transactions contemplated herein;
and no consent, approval, authorization, order, license, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by this Agreement, other than any consent, approval,
authorization, order, license, registration or qualification that has been
obtained or made;
(x) it has either (A) not dealt with any Person (other than the
Purchaser, the Dealers or their respective affiliates or any servicer of a
Mortgage Loan) that may be entitled to any commission or compensation in
connection with the sale or purchase of the Mortgage Loans or entering
into this Agreement or (B) paid in full any such commission or
compensation (except with respect to any servicer of a Mortgage Loan, any
commission or compensation that may be due and payable to such servicer if
such servicer is terminated and does not continue to act as a servicer);
(xi) it is solvent and the sale of the Mortgage Loans hereunder will
not cause it to become insolvent; and the sale of the Mortgage Loans is
not undertaken with the intent to hinder, delay or defraud any of the
Seller's creditors; and
(xii) for so long as the Trust is subject to the reporting
requirements of the Exchange Act, the Seller shall, upon request, provide
the Purchaser (or with respect to any Serviced Companion Mortgage Loan
that is deposited into an Other Securitization, the depositor in such
Other Securitization) and the Trustee with any Additional Form 10-D
Disclosure and any Additional Form 10-K Disclosure pertaining to the
Seller set forth next to the Purchaser's name on Exhibit X and Exhibit Y
of the Pooling and Servicing Agreement within the time periods set forth
in the Pooling and Servicing Agreement.
(b) The Purchaser represents and warrants to the Seller as of the
Closing Date that:
(i) it is a corporation duly organized, validly existing, and in
good standing in the State of Delaware;
(ii) it is duly qualified as a foreign corporation in good standing
in all jurisdictions in which ownership or lease of its property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Purchaser, and the Purchaser is conducting its business so as to comply in
all material respects with the applicable statutes, ordinances, rules and
regulations of each jurisdiction in which it is conducting business;
(iii) it has the power and authority to own its property and to
carry on its business as now conducted;
(iv) it has the power to execute, deliver and perform this
Agreement, and neither the execution and delivery by the Purchaser of this
Agreement, nor the consummation by the Purchaser of the transactions
herein contemplated, nor the compliance by the Purchaser with the
provisions hereof, will (A) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the certificate of
incorporation or by laws of the Purchaser or any of the provisions of any
law, governmental rule, regulation, judgment, decree or order binding on
the Purchaser or any of its properties, or any indenture, mortgage,
contract or other instrument to which the Purchaser is a party or by which
it is bound, or (B) result in the creation or imposition of any lien,
charge or encumbrance upon any of the Purchaser's property pursuant to the
terms of any such indenture, mortgage, contract or other instrument;
(v) this Agreement constitutes a legal, valid and binding obligation
of the Purchaser enforceable against it in accordance with its terms
(except as enforcement thereof may be limited by (a) bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or
other laws affecting the enforcement of creditors' rights generally and
(b) general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or law));
(vi) there are no legal or governmental proceedings pending to which
the Purchaser is a party or of which any property of the Purchaser is the
subject which, if determined adversely to the Purchaser, might interfere
with or adversely affect the consummation of the transactions contemplated
herein and in the Pooling and Servicing Agreement; to the best of the
Purchaser's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(vii) it 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;
(viii) it has not dealt with any broker, investment banker, agent or
other person, other than the Seller, the Dealers and their respective
affiliates, that may be entitled to any commission or compensation in
connection with the sale of the Mortgage Loans or the consummation of any
of the transactions contemplated hereby;
(ix) all consents, approvals, authorizations, orders or filings of
or with any court or governmental agency or body, if any, required for the
execution, delivery and performance of this Agreement by the Purchaser
have been obtained or made; and
(x) it has not intentionally violated any provisions of the United
States Secrecy Act, the United States Money Laundering Control Act of 1986
or the United States International Money Laundering Abatement and
Anti-Terrorism Financing Act of 2001.
(c) The Seller further makes the representations and warranties as
to the Mortgage Loans set forth in Exhibit B as of the Closing Date (or as of
such other date if specifically provided in the particular representation or
warranty), which representations and warranties are subject to the exceptions
thereto set forth in Exhibit C. Neither the delivery by the Seller of the
Mortgage Files, Servicing Files, or any other documents required to be delivered
under Section 2.01 of the Pooling and Servicing Agreement, nor the review
thereof or any other due diligence by the Trustee, any Master Servicer, the
Special Servicer, a Certificate Owner or any other Person shall relieve the
Seller of any liability or obligation with respect to any representation or
warranty or otherwise under this Agreement or constitute notice to any Person of
a Breach or Defect.
(d) Pursuant to this Agreement or Section 2.03(b) of the Pooling and
Servicing Agreement, the Seller and the Purchaser shall be given notice of any
Breach or Defect that materially and adversely affects the value of any Mortgage
Loan, the value of the related Mortgaged Property or the interests of the
Trustee or any Certificateholder therein.
(e) Upon notice pursuant to Section 6(d) above, the Seller shall,
not later than 90 days from the earlier of the Seller's receipt of the notice
or, in the case of a Defect or Breach relating to a Mortgage Loan not being a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, but
without regard to the rule of Treasury Regulation Section 1.860G 2(f)(2) that
causes a defective mortgage loan to be treated as a qualified mortgage, the
Seller's discovery of such Breach or Defect (the "Initial Resolution Period"),
(i) cure such Defect or Breach, as the case may be, in all material respects,
(ii) repurchase the affected Mortgage Loan at the applicable Repurchase Price
(as defined below) or (iii) substitute a Qualified Substitute Mortgage Loan (as
defined below) for such affected Mortgage Loan (provided that in no event shall
any such substitution occur later than the second anniversary of the Closing
Date) and pay the Master Servicer for deposit into the Certificate Account, any
Substitution Shortfall Amount (as defined below) in connection therewith;
provided, however, that, except with respect to a Defect resulting solely from
the failure by a Mortgage Loan Seller to deliver to the Trustee or Custodian the
actual policy of lender's title insurance required pursuant to clause (ix) of
the definition of Mortgage File by a date not later than 18 months following the
Closing Date, if such Breach or Defect is capable of being cured but not within
the Initial Resolution Period, and the Seller has commenced and is diligently
proceeding with the cure of such Breach or Defect within the Initial Resolution
Period, the Seller shall have an additional 90 days commencing immediately upon
the expiration of the Initial Resolution Period (the "Extended Resolution
Period") to complete such cure (or, failing such cure, to repurchase the related
Mortgage Loan or substitute a Qualified Substitute Mortgage Loan as described
above); and provided, further, that with respect to the Extended Resolution
Period the Seller shall have delivered an officer's certificate to the Rating
Agencies, the applicable Master Servicer, the Special Servicer, the Trustee and
the Directing Certificateholder setting forth the reason such Breach or Defect
is not capable of being cured within the Initial Resolution Period and what
actions the Seller is pursuing in connection with the cure thereof and stating
that the Seller anticipates that such Breach or Defect will be cured within the
Extended Resolution Period. Notwithstanding the foregoing, any Defect or Breach
which causes any Mortgage Loan not to be a "qualified mortgage" (within the
meaning of Section 860G(a)(3) of the Code, without regard to the rule of
Treasury Regulations Section 1.860G 2(f)(2) which causes a defective mortgage
loan to be treated as a qualified mortgage) shall be deemed to materially and
adversely affect the interests of the holders of the Certificates therein, and
such Mortgage Loan shall be repurchased or a Qualified Substitute Mortgage Loan
substituted in lieu thereof without regard to the extended cure period described
in the preceding sentence. If the affected Mortgage Loan is to be repurchased,
the Seller shall remit the Repurchase Price (defined below) in immediately
available funds to the Trustee.
If any Breach pertains to a representation or warranty that the
related 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), then
Seller shall cure such Breach within the applicable cure period (as the same may
be extended) by reimbursing the Trust Fund (by wire transfer of immediately
available funds) the reasonable amount of any such costs and expenses incurred
by the applicable Master Servicer, the Special Servicer, the Trustee or the
Trust Fund that are the basis of such Breach and have not been reimbursed by the
related Mortgagor; provided, however, that in the event any such costs and
expenses exceed $10,000, the Seller shall have the option to either repurchase
or substitute for the related Mortgage Loan as provided above or pay such costs
and expenses. Except as provided in the proviso to the immediately preceding
sentence, the Seller shall remit the amount of such costs and expenses and upon
its making such remittance, the Seller shall be deemed to have cured such Breach
in all respects. To the extent any fees or expenses that are the subject of a
cure by the Seller are subsequently obtained from the related Mortgagor, the
portion of the cure payment equal to such fees or expenses obtained from the
Mortgagor shall be returned to the Seller pursuant to Section 2.03(f) of the
Pooling and Servicing Agreement. Notwithstanding the foregoing, the sole remedy
with respect to any breach of the representation set forth in the second to last
sentence of clause (32) of Exhibit B hereto shall be payment by the Seller of
such costs and expenses without respect to the materiality of such breach.
Any of the following will cause a document in the Mortgage File to
be deemed to have a Defect and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interests of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity with a copy of the Mortgage
Note that appears to be regular on its face; (b) the absence from the Mortgage
File of the original signed Mortgage that appears to be regular on its face,
unless there is included in the Mortgage File a certified copy of the Mortgage
and a certificate stating that the original signed Mortgage was sent for
recordation; (c) the absence from the Mortgage File of the lender's title
insurance policy (or if the policy has not yet been issued, an original or copy
of a "marked up" written commitment or the pro-forma or specimen title insurance
policy or a commitment to issue the same pursuant to written escrow instructions
signed by the title insurance company) called for by clause (ix) of the
definition of "Mortgage File" in the Pooling and Servicing Agreement; (d) the
absence from the Mortgage File of any required letter of credit; (e) with
respect to any leasehold mortgage loan, the absence from the related Mortgage
File of a copy (or an original, if available) of the related Ground Lease; or
(f) the absence from the Mortgage File of any intervening assignments required
to create a complete chain of assignments to the Trustee on behalf of the Trust,
unless there is included in the Mortgage File a certified copy of the
intervening assignment and a certificate stating that the original intervening
assignments were sent for recordation; provided, however, that no Defect (except
the Defects previously described in clauses (a) through (f)) shall be considered
to materially and adversely affect the value of any Mortgage Loan, the value of
the related Mortgaged Property or the interests of the Trustee or any
Certificateholder therein unless the document with respect to which the 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 on any collateral securing the Mortgage
Loan or for any immediate significant servicing obligation. Notwithstanding the
foregoing, the delivery of executed escrow instructions or a commitment to issue
a lender's title insurance policy, as provided in clause (ix) of the definition
of "Mortgage File" in the Pooling and Servicing Agreement, in lieu of the
delivery of the actual policy of lender's title insurance, shall not be
considered a Defect or Breach with respect to any Mortgage File if such actual
policy is delivered to the Trustee or its Custodian on its behalf not later than
12 months after the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the first paragraph of this Section
6(e), (ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable Defect
or Breach does not constitute a 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 Defect or Breach, as the case may be, will be deemed to
constitute a Defect or Breach, as the case may be, as to each other Crossed Loan
in the Crossed Group for purposes of this paragraph, and the Seller shall be
required to repurchase or substitute for all of the remaining Crossed Loans in
the related Crossed Group as provided in the first paragraph of this Section
6(e) unless such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria. 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
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. For the avoidance of doubt, the Mortgage Loan affected by
the applicable Defect or Breach and the Qualified Substitute Mortgage Loan, if
any, must satisfy all other criteria for repurchase or substitution, as
applicable, of Mortgage Loans set forth herein. The Seller shall be responsible
for the cost of any Appraisal required to be obtained by the applicable Master
Servicer to determine if the Crossed Loan Repurchase Criteria have been
satisfied, so long as the scope and cost of such Appraisal has been approved by
the Seller (such approval not to be unreasonably withheld).
The "Repurchase Price" with respect to any Mortgage Loan or REO Loan
to be repurchased pursuant to this Agreement and Section 2.03 of the Pooling and
Servicing Agreement, shall have the meaning given to the term "Purchase Price"
in the Pooling and Servicing Agreement.
A "Qualified Substitute Mortgage Loan" with respect to any Mortgage
Loan or REO Loan to be substituted pursuant to this Agreement and Section 2.03
of the Pooling and Servicing Agreement, shall have the meaning given to such
term in the Pooling and Servicing Agreement.
A "Substitution Shortfall Amount" with respect to any Mortgage Loan
or REO Loan to be substituted pursuant to this Agreement and Section 2.03 of the
Pooling and Servicing Agreement, shall have the meaning given to such term in
the Pooling and Servicing Agreement.
In connection with any repurchase or substitution of one or more
Mortgage Loans contemplated hereby, (i) the Purchaser shall execute and deliver,
or cause the execution and delivery of, such endorsements and assignments,
without recourse to the Trust, as shall be necessary to vest in the Seller the
legal and beneficial ownership of each repurchased Mortgage Loan or replaced
Mortgage Loan, as applicable, (ii) the Purchaser shall deliver, or cause the
delivery, to the Seller of all portions of the Mortgage File and other documents
(including the Servicing File) pertaining to such Mortgage Loan possessed by the
Trustee, or on the Trustee's behalf, and (iii) the Purchaser shall release, or
cause to be released, to the Seller any escrow payments and reserve funds held
by the Trustee, or on the Trustee's behalf, in respect of such repurchased or
replaced Mortgage Loans.
(f) The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement and
shall inure to the benefit of the respective parties, notwithstanding any
restrictive or qualified endorsement on the Mortgage Notes or Assignment of
Mortgage or the examination of the Mortgage Files.
(g) Each party hereby agrees to promptly notify the other party of
any breach of a representation or warranty contained in this Section 6. The
Seller's obligation to cure any Breach or Defect or repurchase or substitute for
the affected Mortgage Loan pursuant to this Section 6 shall constitute the sole
remedies available to the Purchaser, the Certificateholders and the Trustee on
behalf of the Certificateholders with respect to a Breach or Defect (subject to
the second paragraph of Section 6(e)); provided, however, that no limitation of
remedy is implied with respect to the Seller's breach of its obligation to cure,
repurchase or substitute in accordance with the terms and conditions of this
Section 6.
SECTION 7. Conditions to Closing. The obligations of the Purchaser
to purchase the Mortgage Loans shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions:
(a) Each of the obligations of the Seller required to be performed
by it at or prior to the Closing Date pursuant to the terms of this Agreement
shall have been duly performed and complied with and all of the representations
and warranties of the Seller under this Agreement shall be true and correct in
all material respects as of the Closing Date, and no event shall have occurred
as of the Closing Date which, with notice or passage of time, would constitute a
default under this Agreement, and the Purchaser shall have received a
certificate to the foregoing effect signed by an authorized officer of the
Seller substantially in the form of Exhibit D.
(b) The Purchaser shall have received the following additional
closing documents:
(i) copies of the Seller's articles of association and by-laws,
certified as of a recent date by the Secretary or Assistant Secretary of
the Seller;
(ii) an original or copy of a certificate of corporate existence of
the Seller issued by the Comptroller of the Currency dated not earlier
than sixty days prior to the Closing Date;
(iii) an opinion of counsel of the Seller, in form and substance
satisfactory to the Purchaser and its counsel, substantially to the effect
that:
(A) the Seller is a national banking association, duly
organized, validly existing, and in good standing under the laws of
the United States;
(B) the Seller has the power to conduct its business as now
conducted and to incur and perform its obligations under this
Agreement and the Indemnification Agreement;
(C) all necessary corporate or other action has been taken by
the Seller to authorize the execution, delivery and performance of
this Agreement and the Indemnification Agreement by the Seller and
this Agreement is a legal, valid and binding agreement of the Seller
enforceable against the Seller, whether such enforcement is sought
in a procedure at law or in equity, except to the extent such
enforcement may be limited by bankruptcy or other similar creditors'
laws or principles of equity and public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreement which purport to provide indemnification with respect
to securities law violations;
(D) the Seller's execution and delivery of, and the Seller's
performance of its obligations under, each of this Agreement and the
Indemnification Agreement do not and will not conflict with the
Seller's articles of association or by-laws or conflict with or
result in the breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Seller is a party or by which the Seller is bound, or to which
any of the property or assets of the Seller is subject or violate
any provisions of law or conflict with or result in the breach of
any order of any court or any governmental body binding on the
Seller;
(E) there is no litigation, arbitration or mediation pending
before any court, arbitrator, mediator or administrative body, or to
such counsel's actual knowledge, threatened, against the Seller
which (i) questions, directly or indirectly, the validity or
enforceability of this Agreement or the Indemnification Agreement or
(ii) would, if decided adversely to the Seller, either individually
or in the aggregate, reasonably be expected to have a material
adverse effect on the ability of the Seller to perform its
obligations under this Agreement or the Indemnification Agreement;
and
(F) no consent, approval, authorization, order, license,
registration or qualification of or with any federal court or
governmental agency or body is required for the consummation by the
Seller of the transactions contemplated by this Agreement and the
Indemnification Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained; and
(iv) a letter from counsel of the Seller to the effect that nothing
has come to such counsel's attention that would lead such counsel to
believe that the Prospectus Supplement as of the date thereof or as of the
Closing Date contains, with respect to the Seller or the Mortgage Loans,
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements therein relating to the Seller
or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading.
(c) The Offered Certificates shall have been concurrently issued and
sold pursuant to the terms of the Underwriting Agreement. The Private
Certificates shall have been concurrently issued and sold pursuant to the terms
of the Certificate Purchase Agreement.
(d) The Seller shall have executed and delivered concurrently
herewith the Indemnification Agreement.
(e) The Seller shall furnish the Purchaser with such other
certificates of its officers or others and such other documents and opinions to
evidence fulfillment of the conditions set forth in this Agreement as the
Purchaser and its counsel may reasonably request.
SECTION 8. Closing. The closing for the purchase and sale of the
Mortgage Loans shall take place at the office of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 a.m., on the Closing Date or such other place
and time as the parties shall agree. The parties hereto agree that time is of
the essence with respect to this Agreement.
SECTION 9. Expenses. The Seller will pay its pro rata portion (the
Seller's pro rata portion to be determined according to the percentage that the
aggregate principal balance as of the Cut-off Date of all the Mortgage Loans
represents in proportion to the aggregate principal balance as of the Cut-off
Date of all the mortgage loans to be included in the Trust Fund) of all costs
and expenses of the Purchaser in connection with the transactions contemplated
herein, including (without duplication thereof), but not limited to: (i) the
costs and expenses of the Purchaser in connection with the purchase of the
Mortgage Loans and the other mortgage loans; (ii) the costs and expenses of
reproducing and delivering the Pooling and Servicing Agreement and this
Agreement and printing (or otherwise reproducing) and delivering the
Certificates; (iii) the reasonable and documented fees, costs and expenses of
the Trustee and its counsel incurred in connection with the Trustee entering
into the Pooling and Servicing Agreement; (iv) the fees and disbursements of a
firm of certified public accountants selected by the Purchaser and the Seller
with respect to numerical information in respect of the Mortgage Loans, the
other mortgage loans and the Certificates included in the Prospectus, the
Memoranda (as defined in the Indemnification Agreement) and any related 8 K
Information (as defined in the Underwriting Agreement), or items similar to the
8 K Information, including the cost of obtaining any "comfort letters" with
respect to such items; (v) the 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; (vi) the costs and expenses in connection with any
determination of the eligibility of the Certificates for investment by
institutional investors in any jurisdiction and the preparation of any legal
investment survey, including reasonable fees and disbursements of counsel in
connection therewith; (vii) the costs and expenses in connection with printing
(or otherwise reproducing) and delivering the Registration Statement, Prospectus
and Memoranda, and the reproduction and delivery of this Agreement and the
furnishing to the Underwriters of such copies of the Registration Statement,
Prospectus, Memoranda and this Agreement as the Underwriters may reasonably
request; (viii) the fees of the rating agency or agencies requested to rate the
Certificates and (ix) the reasonable fees and expenses of Xxxxxxx Xxxxxxxx &
Wood LLP, counsel to the Underwriters, and Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel to the Depositor.
SECTION 10. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement. Furthermore, the
parties shall in good faith endeavor to replace any provision held to be invalid
or unenforceable with a valid and enforceable provision which most closely
resembles, and which has the same economic effect as, the provision held to be
invalid or unenforceable.
SECTION 11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York without regard to conflicts of
law principles and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
SECTION 12. No Third Party Beneficiaries. The parties do not intend
the benefits of this Agreement to inure to any third party except as expressly
set forth in Section 13.
SECTION 13. Assignment. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders to the extent set forth in the Pooling and Servicing
Agreement. The Seller hereby acknowledges its obligations, including that of
expense reimbursement, pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling
and Servicing Agreement. Except as set forth hereinabove and in Sections 2.01,
2.02 and 2.03 of the Pooling and Servicing Agreement, the representations and
warranties of the Seller made hereunder and the remedies provided hereunder with
respect to Breaches or Defects may not be further assigned by the Purchaser, the
Trustee or any successor trustee. No owner of a Certificate issued pursuant to
the Pooling and Servicing Agreement shall be deemed a successor or permitted
assign because of such ownership. This Agreement shall bind and inure to the
benefit of, and be enforceable by, the Seller, the Purchaser and their permitted
successors and permitted assigns. The warranties and representations and the
agreements made by the Seller herein shall survive delivery of the Mortgage
Loans to the Trustee until the termination of the Pooling and Servicing
Agreement.
SECTION 14. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given upon
receipt by the intended recipient if personally delivered at or couriered, sent
by facsimile transmission or mailed by first class or registered mail, postage
prepaid, to (i) in the case of the Purchaser, X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxxx, fax number (000) 000-0000, with a copy to Xxxxxx Xxxxx, fax number
(000) 000-0000, (ii) in the case of the Seller, PNC Bank, National Association,
00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for deliveries or
courier), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for United
States mail), Attention: Xxxxx Xxxx, fax number: (000) 000-0000, with a copy to
it at One PNC Plaza, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000, Attention: Xxxxxxxx Xxxxxx Xxxxx, fax number: (000) 000-0000 and (iii) in
the case of any of the preceding parties, such other address or fax number as
may hereafter be furnished to the other party in writing by such party.
SECTION 15. Amendment. This Agreement may be amended only by a
written instrument which specifically refers to this Agreement and is executed
by the Purchaser and the Seller; provided, however, that unless such amendment
is to cure an ambiguity, mistake or inconsistency in this Agreement, no
amendment shall be permitted unless each Rating Agency has delivered a written
confirmation that such amendment will not result in a downgrade, withdrawal or
qualification of the then current ratings of the Certificates and the cost of
obtaining any Rating Agency confirmation shall be borne by the party requesting
such amendment. This Agreement shall not be deemed to be amended orally or by
virtue of any continuing custom or practice. No amendment to the Pooling and
Servicing Agreement which relates to defined terms contained therein or any
obligations of the Seller whatsoever shall be effective against the Seller
unless the Seller shall have agreed to such amendment in writing.
SECTION 16. Counterparts. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
SECTION 17. Exercise of Rights. No failure or delay on the part of
any party to exercise any right, power or privilege under this Agreement and no
course of dealing between the Seller and the Purchaser shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. Except as set forth in
Section 6 herein, the rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any party would
otherwise have pursuant to law or equity. Except as set forth in Section 6
herein, no notice to or demand on any party in any case shall entitle such party
to any other or further notice or demand in similar or other circumstances, or
constitute a waiver of the right of either party to any other or further action
in any circumstances without notice or demand.
SECTION 18. No Partnership. Nothing herein contained shall be deemed
or construed to create a partnership or joint venture between the parties
hereto. Nothing herein contained shall be deemed or construed as creating an
agency relationship between the Purchaser and the Seller and neither party shall
take any action which could reasonably lead a third party to assume that it has
the authority to bind the other party or make commitments on such party's
behalf.
SECTION 19. Miscellaneous. This Agreement supersedes all prior
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against whom enforcement of the change, waiver, discharge or termination is
sought.
* * * * * *
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the day and year first above written.
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., as Purchaser
By: /s/ Xxxxxxx X. Xxx
----------------------------------
Name: Xxxxxxx X. Xxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Seller
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
Sequence
# Originator Property Name Property Address
-----------------------------------------------------------------------------------------------------------------------------------
8 PNC Village Properties Various
8.01 PNC Lawrenceburg Shopping Center 0000 X. Xxxxxx Xxx.
8.02 PNC Beechlake Shopping Center 000 Xxxxxx Xxxxxx
8.03 PNC River Oaks Shopping Center 0000 Xxxxxxxxxx Xxxxxxx
8.04 PNC Lincoln Park Shopping Center 0000 Xxxxxxxxxx Xxxxxxx
8.05 PNC Westgate Shopping Center 0000 Xxxx Xxxxxxx Xxxxxx
8.06 PNC Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxxx Xxxxxxx
8.07 PNC Humboldt Shopping Center 0000 X. Xxxxxxx Xxx.
8.08 PNC Franklin Shopping Center 000 Xxxxx Xxxx Xx.
9 PNC Danville Manor Shopping Center 1650 Hustonville Road
10 PNC Tullahoma Shopping Center 000-000 X. Xxxxxxx Xxxxxx
29 PNC Xxxxxxxxxx Park Apartments 0000 Xxxxxxxx Xxxxx
30 PNC Xxxx 28 Office Park 16605 N. 28th Ave & 16610 N. Black Canyon Highway
35 PNC Rio Xxxxx Plaza 000-000 Xxxxxxx Xxxxxxxxx
38 PNC Villas at Stonebridge Apartments 000 Xxxxxxxxxxx Xxxxxxxxx
43 PNC Hilton Garden Inn - Tampa North 13305 Tampa Xxxxx Xxxxxxxxx
00 XXX Xxxxxxx Xxxx Xxxxxxxx Xxxx 1480 & 0000 Xxxx Xxxxxx Xxxx
51 PNC Riviera Plaza Shopping Center 0000-0000 Xxxx Xxxxxxxxxx Xxxxx
56 PNC Packer Square - Tustin 13012-13152 Newport Ave
61 PNC Hilton Garden Inn - Chesapeake 0000 Xxxxxxxxx Xxxx
88 PNC Smile Care Office Building - CA Various
88.01 PNC Xxxxxx 000 X Xxx Xxx Xxxxxxxxx
88.02 PNC Riverside 00000 Xxxxxxx Xxxxxx
88.03 PNC Santa Xxx 0000 Xxxxx Xxxx Xxxxxx
88.04 PNC Torrance 000 X. Xxxxxx Xxxxxx
88.05 PNC Rosemead 0000 Xxxxxxxx Xxxxxxxxx
92 PNC Residence Inn at Geyser- Colorado Springs 0000 Xxxxxx Xxxxx
101 PNC The 1200 Building 0000 Xxxxxxxxxx Xxxxxxxxx
113 PNC Universal Technical Institute 0000 Xxxxxxxxx Xxxxx
129 PNC Fairfield Inn - Olathe 00000 Xxxxx Xxxxxxx Xxxx Xxxx
130 PNC Smile Care Office Buildings - NV Various
130.01 PNC Las Vegas 0000 X Xxxxxxxxxx Xxxx
130.02 PNC Henderson 0000 Xxxxxxxx Xxxxxxx
130.03 PNC Spring Valley 0000 X Xxxxxxxx Xxxx
130.04 PNC Pahrump 0000 X Xxx 000
155 PNC A+ Mini Storage 0000 00xx Xxxxxx X.X.
163 PNC One Xxxxxxx Place Shops 00000 X. Xxxxxxx Xxxxxx
Sequence Property Property Total
# City State Zip Code County Type SubType SF/Units
----------------------------------------------------------------------------------------------------------------------------------
8 Various Various Various Various Retail Anchored 920,263
8.01 Xxxxxxxxxxxx XX 00000 Xxxxxxxx Retail Anchored 174,788
8.02 Xxxxxxxxx XX 00000 Xxxxxxxxx Retail Anchored 141,960
8.03 Xxxxxxxxxxxx XX 00000 Lincoln Retail Anchored 93,050
8.04 Xxxxxxxxxxxx XX 00000 Lincoln Retail Anchored 130,716
8.05 Xxxxxxx XX 00000 Xxxxx Retail Anchored 93,444
8.06 Xxxxxxxxx XX 00000 Xxxxxxxx Retail Anchored 94,570
8.07 Xxxxxxxx XX 00000 Xxxxxx Retail Anchored 115,847
8.08 Xxxxxxxx XX 00000 Xxxxxxx Retail Anchored 75,888
9 Xxxxxxxx XX 00000 Xxxxx Retail Anchored 185,444
10 Xxxxxxxxx XX 00000 Coffee Retail Anchored 71,050
00 Xxxxxx Xxxx XX 00000 Pulaski Multifamily Garden 202
30 Xxxxxxx XX 00000 Maricopa Xxxxxx Xxxxxxxx 000,000
00 Xxx Xxxxx XX 00000 Sacramento Retail Anchored 77,000
38 Xxxxxx XX 00000 Oklahoma Multifamily Garden 236
43 Temple Terrace FL 33637 Hillsborough Hotel Limited Service 148
44 Xxxx Xxxxx XX 00000 Xxx Office Suburban 92,640
51 Xxxx XX 00000 Maricopa Retail Anchored 116,624
56 Tustin CA 92780 Orange Retail Unanchored 42,583
61 Chesapeake VA 23320 Chesapeake Hotel Full Service 92
88 Various CA Various Various Office Suburban 36,202
88.01 Xxxxxx XX 00000 Los Angeles Office Suburban 11,868
88.02 Xxxxxxxxx XX 00000 Los Angeles Office Suburban 10,000
88.03 Xxxxx Xxx XX 00000 Orange Office Suburban 5,675
88.04 Xxxxxxxx XX 00000 Los Angeles Office Suburban 3,490
88.05 Xxxxxxxx XX 00000 Los Angeles Office Suburban 5,169
92 Xxxxxxxx Xxxxxxx XX 00000 El Paso Hotel Limited Service 72
101 Jupiter FL 33458 Palm Beach Office Suburban 25,566
113 Xxxxxxx XX 00000 Orange Industrial Flex 54,435
129 Xxxxxx XX 00000 Xxxxxxx Hotel Limited Service 85
130 Various NV Various Various Office Suburban 18,056
130.01 Xxx Xxxxx XX 00000 Xxxxx Office Suburban 7,980
130.02 Xxxxxxxxx XX 00000 Xxxxx Office Suburban 4,490
130.03 Xxx Xxxxx XX 00000 Xxxxx Office Suburban 3,528
130.04 Xxxxxxx XX 00000 Xxx Office Suburban 2,058
155 Norman OK 73071 Cleveland Self-Storage Self-Storage 000
000 Xxxxxxx XX 00000 Sedgwick Retail Anchored 8,187
Sequence Unit of Original Cutoff Interest Amortization Accrual Monthly
# Measure Balance Balance Rate (%) Type Type Debt Service
---------------------------------------------------------------------------------------------------------------------------------
8 Square Feet 28,800,000 28,800,000.00 5.130000 IO-Balloon Actual/360 156,900.86
8.01 Square Feet 5,360,000 5,360,000.00 5.130000
8.02 Square Feet 5,080,000 5,080,000.00 5.130000
8.03 Square Feet 4,392,000 4,392,000.00 5.130000
8.04 Square Feet 4,264,000 4,264,000.00 5.130000
8.05 Square Feet 2,800,000 2,800,000.00 5.130000
8.06 Square Feet 2,584,000 2,584,000.00 5.130000
8.07 Square Feet 2,400,000 2,400,000.00 5.130000
8.08 Square Feet 1,920,000 1,920,000.00 5.130000
9 Square Feet 9,807,000 9,807,000.00 5.370000 IO-Balloon Actual/360 54,885.81
10 Square Feet 3,112,000 3,112,000.00 5.130000 IO-Balloon Actual/360 16,954.01
29 Units 15,920,000 15,920,000.00 5.590000 IO-Balloon Actual/360 91,293.01
30 Square Feet 15,675,000 15,675,000.00 5.600000 IO-Balloon Actual/360 89,986.88
35 Square Feet 13,890,000 13,890,000.00 5.600000 IO-Balloon Actual/360 79,739.57
38 Units 13,200,000 13,200,000.00 5.530000 IO-Balloon Actual/360 75,196.79
43 Rooms 11,450,000 11,450,000.00 5.890000 Balloon Actual/360 67,840.88
44 Square Feet 11,400,000 11,400,000.00 5.880000 IO-Balloon Actual/360 67,471.74
51 Square Feet 10,250,000 10,250,000.00 5.920000 IO-Balloon Actual/360 60,927.73
56 Square Feet 8,800,000 8,800,000.00 5.530000 IO-Balloon Actual/360 50,131.20
61 Rooms 8,160,000 8,160,000.00 5.800000 Balloon Actual/360 47,879.05
88 Square Feet 5,700,000 5,700,000.00 5.800000 IO-Balloon Actual/360 33,444.92
88.01 Square Feet 2,210,000 2,210,000.00 5.800000
88.02 Square Feet 1,235,000 1,235,000.00 5.800000
88.03 Square Feet 858,000 858,000.00 5.800000
88.04 Square Feet 760,000 760,000.00 5.800000
88.05 Square Feet 637,000 637,000.00 5.800000
92 Rooms 5,500,000 5,500,000.00 5.820000 IO-Balloon Actual/360 34,833.89
101 Square Feet 4,842,000 4,831,061.02 5.730000 Balloon Actual/360 28,195.11
000 Xxxxxx Feet 4,000,000 4,000,000.00 5.890000 Balloon Actual/360 25,503.76
129 Rooms 3,250,000 3,250,000.00 5.820000 IO-Balloon Actual/360 20,583.66
130 Square Feet 3,000,000 3,000,000.00 5.850000 IO-Balloon Actual/360 17,698.23
130.01 Square Feet 1,232,000 1,232,000.00 5.850000
130.02 Square Feet 826,000 826,000.00 5.850000
130.03 Square Feet 650,000 650,000.00 5.850000
130.04 Square Feet 292,000 292,000.00 5.850000
155 Units 1,880,000 1,877,449.93 5.800000 Balloon Actual/360 11,030.96
000 Xxxxxx Feet 1,425,000 1,421,293.44 5.500000 Balloon Actual/360 9,802.39
Sequence Rem. Amort. Rem. Payment Xxxxx XXX Maturity/ARD Final
# I/O Period Term Term Term Amort. Date Period (Y/N) Date Mat Date ARD Step Up (%)
------------------------------------------------------------------------------------------------------------------------------------
8 24 120 120 360 360 1 5 No 03/01/16
8.01 24 120 120 360 360
8.02 24 120 120 360 360
8.03 24 120 120 360 360
8.04 24 120 120 360 360
8.05 24 120 120 360 360
8.06 24 120 120 360 360
8.07 24 120 120 360 360
8.08 24 120 120 360 360
9 24 120 120 360 360 1 5 No 03/01/16
10 24 120 120 360 360 1 5 No 03/01/16
29 36 120 120 360 360 1 5 No 03/01/16
30 36 120 120 360 360 1 5 No 03/01/16
35 60 120 120 360 360 1 5 No 03/01/16
38 36 120 119 360 360 1 5 No 02/01/16
43 0 60 60 360 360 1 5 No 03/01/11
44 24 120 120 360 360 1 5 No 03/01/16
51 60 120 120 360 360 1 5 No 04/01/16
56 36 120 120 360 360 1 5 No 03/01/16
61 0 120 120 360 360 1 5 No 03/01/16
88 24 120 120 360 360 1 5 No 04/01/16
88.01 24 120 120 360 360
88.02 24 120 120 360 360
88.03 24 120 120 360 360
88.04 24 120 120 360 360
88.05 24 120 120 360 360
92 36 120 120 300 300 1 5 No 03/01/16
101 0 120 118 360 358 1 5 No 01/01/16
113 0 120 120 300 300 1 5 No 03/01/16
129 36 120 120 300 300 1 5 No 03/01/16
130 24 120 120 360 360 1 5 No 04/01/16
130.01 24 120 120 360 360
130.02 24 120 120 360 360
130.03 24 120 120 360 360
130.04 24 120 120 360 360
155 0 120 119 360 359 1 5 No 02/01/16
163 0 120 119 240 239 1 5 No 02/01/16
Sequence Defeasance
# Allowed
----------------------------------
8 Yes
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 Yes
10 Yes
29 Yes
30 Yes
35 Yes
38 No
43 Yes
44 Yes
51 Yes
56 Yes
61 Yes
88 Yes
88.01
88.02
88.03
88.04
88.05
92 Yes
101 No
113 No
129 Yes
130 Yes
130.01
130.02
130.03
130.04
155 Yes
163 Yes
Upfront Upfront Upfront Upfront Upfront Upfront Upfront Upfront
Sequence CapEx Eng. Envir. TI/LC RE Tax Ins. Other Other
# Reserve Reserve Reserve Reserve Reserve Reserve Reserve Description
----------------------------------------------------------------------------------------------------------------------------------
8 0.00 0.00 0.00 0.00 0.00 0.00 0.00
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 0.00 0.00 0.00 0.00 0.00 0.00 29,700.00 Outstanding Issues
10 0.00 28,125.00 0.00 0.00 0.00 0.00 0.00
29 0.00 0.00 0.00 0.00 0.00 0.00 0.00
30 0.00 0.00 0.00 12,000.00 0.00 0.00 0.00
35 0.00 0.00 0.00 0.00 0.00 0.00 0.00
38 0.00 0.00 0.00 0.00 0.00 0.00 0.00
43 0.00 0.00 0.00 0.00 0.00 0.00 0.00
44 0.00 0.00 0.00 0.00 0.00 0.00 25,000.00 Outstanding Issues
51 121,875.00 0.00 0.00 0.00 0.00 0.00 0.00
56 0.00 0.00 0.00 359,375.00 0.00 0.00 0.00
61 0.00 0.00 0.00 0.00 0.00 0.00 400,000.00 Outstanding Issues
88 0.00 82,330.00 1,500.00 0.00 0.00 0.00 0.00
88.01
88.02
88.03
88.04
88.05
92 0.00 0.00 0.00 0.00 0.00 0.00 0.00
101 0.00 0.00 0.00 0.00 0.00 0.00 0.00
113 0.00 0.00 0.00 0.00 0.00 0.00 0.00
129 0.00 0.00 0.00 0.00 0.00 0.00 0.00
130 0.00 0.00 0.00 0.00 0.00 0.00 0.00
130.01
130.02
130.03
130.04
155 0.00 0.00 0.00 0.00 0.00 0.00 0.00
163 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Monthly Monthly Monthly Monthly Monthly Other
Sequence Envir. TI/LC RE Tax Ins. Other Month
# Monthly Capex Reserve Reserve Reserve Reserve Reserve Reserve Description
----------------------------------------------------------------------------------------------------------------------------------
8 11,498.25 0.00 8,333.33 37,002.92 11,002.17 0.00
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 5,155.00 0.00 3,333.33 6,619.18 2,623.00 0.00
10 1,211.00 0.00 1,307.58 4,150.25 1,660.00 0.00
29 4,258.83 0.00 0.00 12,033.33 5,582.92 0.00
30 1,823.58 0.00 6,666.67 30,848.17 1,202.08 0.00
35 641.67 0.00 3,000.00 4,007.50 1,188.58 0.00
38 0.00 0.00 0.00 10,936.25 3,789.17 0.00
43 $14,852.41 (4% gross revenue) 0.00 0.00 12,772.92 5,683.75 0.00
44 1,158.00 0.00 5,750.00 9,888.00 3,620.00 0.00
51 1,457.83 0.00 2,500.00 12,891.67 1,616.92 0.00
56 713.08 0.00 4,166.67 8,601.93 643.25 0.00
61 4,975.00 0.00 0.00 8,531.87 3,945.00 0.00
88 1,761.00 0.00 0.00 8,027.31 658.00 0.00
88.01
88.02
88.03
88.04
88.05
92 $7,924.53 (4% gross revenue) 0.00 0.00 3,454.76 0.00 0.00
101 426.08 0.00 833.33 8,291.67 1,456.42 0.00
113 911.83 0.00 0.00 3,513.26 506.92 0.00
129 $5,943.08 (4% gross revenue) 0.00 0.00 8,935.12 0.00 0.00
130 330.08 0.00 0.00 2,996.67 302.92 0.00
130.01
130.02
130.03
130.04
155 621.25 0.00 0.00 1,870.83 522.42 0.00
163 0.00 0.00 0.00 0.00 0.00 0.00
Sequence Letter Crossed Related
# of Credit Description of LOC Title Type Loan Borrower
------------------------------------------------------------------------------------------------------------
8 No Fee/Leasehold A
8.01 Fee
8.02 Fee/Leasehold
8.03 Fee
8.04 Fee
8.05 Fee
8.06 Fee
8.07 Fee
8.08 Fee
9 No Fee A
10 No Fee/Leasehold A
29 No Fee
30 No Fee
35 No Fee
38 No Fee
43 No Fee
44 No Fee
51 No Fee
56 No Fee
61 No Fee
88 1,225,000 Community Dental Lease Fee D
88.01 Fee
88.02 Fee
88.03 Fee
88.04 Fee
88.05 Fee
92 No Fee 10
101 No Fee
113 No Fee
129 No Fee 10
130 625,000 Community Dental Lease Fee D
130.01 Fee
130.02 Fee
130.03 Fee
130.04 Fee
155 No Fee
163 No Fee
Sequence
# Borrower Name
----------------------------------------------------------------------------------------------------------------------------------
8 XX Xxxx Investment Fund II, LLC
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 Danville Manor, LLC
10 XX Xxxx Investment Holdings III, LLC
29 USA Xxxxxxxxxx Park, LLC, and others as tenants in common
30 Xxxxxx Xxxx 28 Property, LLC
35 J&T Rio Xxxxx Plaza, LLC; Xxxxxx Family Properties Rio Xxxxx, LLC; BSP Rio Xxxxx Plaza, LLC
38 Brandywine Partners, L.P.
43 Tampa Oaks Hotel, L.L.C.
44 Lion Paw, LLC
51 Riviera Xxxxx Adobes, LLC, Riviera BJA, LLC, Riviera BJSP, LLC, and Riviera FH, LLC
56 Ko's Packer Square, Inc.
61 JSB Properties LLC
88 Sonrisa Venture, L.P., Xxxxxxx Xxxxx, LLC, Sonrisa Leeds, LLC, Xxxxxxx X'Xxxxxx, LLC, Xxxxxxx Xxxxx, LLC,
Xxxxxxx Xxxxxxx, LLC, Sonrisa Read, LLC, Xxxxxxx Xxxx, LLC
88.01
88.02
88.03
88.04
88.05
92 Cheyenne Mountain Hotel Company, L.L.C.
101 Cove Neck Properties, LLC
113 0000 Xxxxxxxxx Xxxxx, LLC
129 RHW Hotel Holdings Company, LLC
130 Sonrisa Venture, L.P., Xxxxxxx Xxxx, LLC, Sonrisa Leeds, LLC, Xxxxxxx X'Xxxxxx, LLC, Xxxxxxx Xxxxx, LLC,
Xxxxxxx Xxxxxxx, LLC, Sonrisa Read, LLC, Xxxxxxx Xxxx, LLC
130.01
130.02
130.03
130.04
155 A+ Mini Storage, LLC
163 Wichita East Small Shops, LLC
Sequence
# Principal Name
---------------------------------------------------------------------------------------------------------------------------------
8 Xxxxx X. Xxxx
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 Xxxxx X. Xxxx
10 Xxxxx X. Xxxx
29 U.S. Advisor, LLC
30 Xxxxxxx X. Xxxxxxxxxxxx
35 Xxxx X. Xxxxxx
38 Brandywine Partners, L.P.
43 Xxxxxxx X. Xxxxxxxx
44 Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xx.
51 Xxxxx X. Xxx, Xxxxx X. Xxxxxxx
56 Xxxxx Xx, Xxxxxx Xx
61 Xxxxxxxxxx X. Xxxxxx
88 Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx Xxxxx, Xxxxx X'Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxxxx, Xxxxxx X. Read,
Xxxxx Xxxx
88.01
88.02
88.03
88.04
88.05
92 Xxxxxxx X. Xxxxx
101 Xxxxxx X. Xxxxxxxx
113 Xxxx X. Xxxxx
129 Xxxxxxx X. Xxxxx
130 Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, Xxxxxx Xxxxx, Xxxxx X'Xxxxxx, Xxxxxx X. Xxxxx, Xxxxx Xxxxxxx, Xxxxxx X. Read,
Xxxxx Xxxx
130.01
130.02
130.03
130.04
000 Xxxxxx Xxxxxxxx
000 Xxxx Xxxxxx
Master Primary Trustee &
Sequence Lockbox Lockbox Servicing Servicing Paying
# (Y/N) In-place Fee Rate Fee Rate Agent Fee
-----------------------------------------------------------------------------
8 No No 0.010000 0.030000 0.000700
8.01
8.02
8.03
8.04
8.05
8.06
8.07
8.08
9 No No 0.010000 0.030000 0.000700
10 No No 0.010000 0.030000 0.000700
29 No No 0.010000 0.050000 0.000700
30 No No 0.010000 0.080000 0.000700
35 No No 0.010000 0.030000 0.000700
38 No No 0.010000 0.030000 0.000700
43 No No 0.010000 0.030000 0.000700
44 No No 0.010000 0.060000 0.000700
51 Yes Yes 0.010000 0.060000 0.000700
56 No No 0.010000 0.030000 0.000700
61 No No 0.010000 0.030000 0.000700
88 Yes Yes 0.010000 0.050000 0.000700
88.01
88.02
88.03
88.04
88.05
92 No No 0.010000 0.030000 0.000700
101 No No 0.010000 0.080000 0.000700
113 Yes Yes 0.010000 0.080000 0.000700
129 No No 0.010000 0.030000 0.000700
130 Yes Yes 0.010000 0.050000 0.000700
130.01
130.02
130.03
130.04
155 No No 0.010000 0.080000 0.000700
163 No No 0.010000 0.080000 0.000700
Net
Sequence Subservicer Admin. Mortgage Servicing Loan
# Fee Fee Interest Rate Fee Rate Group
------------------------------------------------------------------------------------------
8 0.040700 5.089300 0.040000 1
8.01 1
8.02 1
8.03 1
8.04 1
8.05 1
8.06 1
8.07 1
8.08 1
9 0.040700 5.329300 0.040000 1
10 0.040700 5.089300 0.040000 1
29 0.060700 5.529300 0.060000 2
30 0.090700 5.509300 0.090000 1
35 0.040700 5.559300 0.040000 1
38 0.040700 5.489300 0.040000 2
43 0.040700 5.849300 0.040000 1
44 0.070700 5.809300 0.070000 1
51 0.070700 5.849300 0.070000 1
56 0.040700 5.489300 0.040000 1
61 0.040700 5.759300 0.040000 1
88 0.060700 5.739300 0.060000 1
88.01 1
88.02 1
88.03 1
88.04 1
88.05 1
92 0.040700 5.779300 0.040000 1
101 0.090700 5.639300 0.090000 1
113 0.090700 5.799300 0.090000 1
129 0.040700 5.779300 0.040000 1
130 0.060700 5.789300 0.060000 1
130.01 1
130.02 1
130.03 1
130.04 1
155 0.090700 5.709300 0.090000 1
163 0.090700 5.409300 0.090000 1
EXHIBIT B
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
(1) No Mortgage Loan is 30 days or more delinquent in payment of
principal and interest (without giving effect to any applicable grace period in
the related Mortgage Note) and no Mortgage Loan has been 30 days or more
(without giving effect to any applicable grace period in the related Mortgage
Note) past due.
(2) Except with respect to the ARD Loans, which provide that the
rate at which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Loans (exclusive of any default interest, late charges or
prepayment premiums) are fixed rate mortgage loans with terms to maturity, at
origination or as of the most recent modification, as set forth in the Mortgage
Loan Schedule.
(3) The information pertaining to each Mortgage Loan set forth on
the Mortgage Loan Schedule is true and correct in all material respects as of
the Cut-off Date.
(4) At the time of the assignment of the Mortgage Loans to the
Purchaser, the Seller had good and marketable title to and was the sole owner
and holder of, each Mortgage Loan, free and clear of any pledge, lien,
encumbrance or security interest (subject to certain agreements regarding
servicing as provided in the Pooling and Servicing Agreement, subservicing
agreements permitted thereunder and that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date between Master Servicer No. 1 and
Seller) and such assignment validly and effectively transfers and conveys all
legal and beneficial ownership of the Mortgage Loans to the Purchaser free and
clear of any pledge, lien, encumbrance or security interest (subject to certain
agreements regarding servicing as provided in the Pooling and Servicing
Agreement, subservicing agreements permitted thereunder and that certain
Servicing Rights Purchase Agreement, dated as of the Closing Date between Master
Servicer No. 1 and Seller).
(5) In respect of each Mortgage Loan, (A) in reliance on public
documents or certified copies of the incorporation or partnership or other
entity documents, as applicable, delivered in connection with the origination of
such Mortgage Loan, the related Mortgagor is an entity organized under the laws
of a state of the United States of America, the District of Columbia or the
Commonwealth of Puerto Rico and (B) as of the origination date, the Seller
(based on customary due diligence) had no knowledge, and since the origination
date, the Seller has no actual knowledge, that the related Mortgagor is a debtor
in any bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or similar proceeding.
(6) Each Mortgage Loan is secured by the related Mortgage which
establishes and creates a valid and subsisting first priority lien on the
related Mortgaged Property, or leasehold interest therein, comprising real
estate, free and clear of any liens, claims, encumbrances, participation
interests, pledges, charges or security interests subject only to Permitted
Encumbrances. Such Mortgage, together with any separate security agreement, UCC
Financing Statement or similar agreement, if any, establishes and creates a
first priority security interest in favor of the Seller in all personal property
owned by the Mortgagor that is used in, and is reasonably necessary to, the
operation of the related Mortgaged Property and, to the extent a security
interest may be created therein and perfected by the filing of a UCC Financing
Statement under the Uniform Commercial Code as in effect in the relevant
jurisdiction, the proceeds arising from the Mortgaged Property and other
collateral securing such Mortgage Loan, subject only to Permitted Encumbrances.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, either as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances. Except for the holder of the
Companion Loan with respect to the AB Mortgage Loans, to the Seller's knowledge,
no person other than the related Mortgagor and the mortgagee own any interest in
any payments due under the related leases. The related Mortgage or such
assignment of leases and rents provision provides for the appointment of a
receiver for rents or allows the holder of the related Mortgage to enter into
possession of the related Mortgaged Property to collect rent or provides for
rents to be paid directly to the holder of the related Mortgage in the event of
a default beyond applicable notice and grace periods, if any, under the related
Mortgage Loan documents. As of the origination date, there were, and, to the
Seller's actual knowledge as of the Closing Date, there are, no mechanics' or
other similar liens or claims which have been filed for work, labor or materials
affecting the related Mortgaged Property which are or may be prior or equal to
the lien of the Mortgage, except those that are bonded or escrowed for or which
are insured against pursuant to the applicable Title Insurance Policy (as
defined below) and except for Permitted Encumbrances. No (a) Mortgaged Property
secures any mortgage loan not represented on the Mortgage Loan Schedule other
than a Companion Loan, (b) Mortgage Loan is cross-collateralized or
cross-defaulted with any other mortgage loan, other than a Mortgage Loan listed
on the Mortgage Loan Schedule or a Companion Loan, or (c) Mortgage Loan is
secured by property that is not a Mortgaged Property. Notwithstanding the
foregoing, no representation is made as to the perfection of any security
interest in rent, operating revenues or other personal property to the extent
that possession or control of such items or actions other than the filing of UCC
Financing Statements are required in order to effect such perfection.
(7) The related Mortgagor under each Mortgage Loan has good and
indefeasible fee simple or, with respect to those Mortgage Loans described in
clause (20) hereof, leasehold title to the related Mortgaged Property comprising
real estate subject to any Permitted Encumbrances.
(8) The Seller has received an American Land Title Association
(ALTA) lender's title insurance policy or a comparable form of lender's title
insurance policy (or escrow instructions binding on the Title Insurer (as
defined below) and irrevocably obligating the Title Insurer to issue such title
insurance policy or a title policy commitment or pro-forma "marked up" at the
closing of the related Mortgage Loan and countersigned or otherwise approved by
the Title Insurer or its authorized agent) as adopted in the applicable
jurisdiction (the "Title Insurance Policy"), which was issued by a nationally
recognized title insurance company (the "Title Insurer") qualified to do
business in the jurisdiction where the applicable Mortgaged Property is located
(unless such jurisdiction is the State of Iowa), covering the portion of each
Mortgaged Property comprised of real estate and 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 such Mortgaged Property comprised of real estate, subject
only to Permitted Encumbrances. 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 and all premiums thereon have been paid and will provide
that the insured includes the owner of the Mortgage Loan and its successors
and/or assigns. No holder of the related Mortgage has done, by act or omission,
anything that would, and the Seller has no actual knowledge of any other
circumstance that would, impair the coverage under such Title Insurance Policy.
(9) The related Assignment of Mortgage and the related assignment of
the Assignment of Leases and Rents executed in connection with each Mortgage, if
any, have been recorded in the applicable jurisdiction (or, if not recorded,
have been submitted for recording or are in recordable form (but for the
insertion of the name and address of the assignee and any related recording
information which is not yet available to the Seller)) and constitute the legal,
valid and binding assignment of such Mortgage and the related Assignment of
Leases and Rents from the Seller to the Purchaser. The endorsement of the
related Mortgage Note by the Seller constitutes the legal, valid, binding and
enforceable (except as such enforcement may be limited by anti-deficiency laws
or bankruptcy, receivership, conservatorship, reorganization, insolvency,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law)) assignment of
such Mortgage Note, and together with such Assignment of Mortgage and the
related assignment of Assignment of Leases and Rents, legally and validly
conveys all right, title and interest in such Mortgage Loan and Mortgage Loan
documents to the Purchaser.
(10) (a) The Mortgage Loan documents for each Mortgage Loan provide
that such Mortgage Loan is non-recourse to the related parties thereto except
that the related Mortgagor and at least one individual or entity shall be fully
liable for actual losses, liabilities, costs and damages arising from certain
acts of the related Mortgagor and/or its principals specified in the related
Mortgage Loan documents, which acts generally include the following: (i) fraud
or intentional misrepresentation, (ii) misapplication or misappropriation of
rents, insurance proceeds or condemnation awards, (iii) either (i) any act of
actual waste or (ii) damage or destruction to the Mortgaged Property caused by
the acts or omissions of the borrower, its agents, employees or contractors, and
(iv) any breach of the environmental covenants contained in the related Mortgage
Loan documents.
(b) The Mortgage Loan documents for each Mortgage Loan contain
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the practical realization against the
Mortgaged Property of the principal benefits of the security intended to
be provided thereby, including realization by judicial or, if applicable,
non judicial foreclosure, and there is no exemption available to the
related Mortgagor which would interfere with such right of foreclosure
except any statutory right of redemption or as may be limited by
anti-deficiency or one form of action laws or by bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
(c) Each of the related Mortgage Notes and Mortgages are the legal,
valid and binding obligations of the related Mortgagor named on the
Mortgage Loan Schedule and each of the other related Mortgage Loan
documents is the legal, valid and binding obligation of the parties
thereto (subject to any non recourse provisions therein), enforceable in
accordance with its terms, except as such enforcement may be limited by
anti-deficiency or one form of action laws or bankruptcy, receivership,
conservatorship, reorganization, insolvency, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law), and except that certain
provisions of such Mortgage Loan documents are or may be unenforceable in
whole or in part under applicable state or federal laws, but the inclusion
of such provisions does not render any of the Mortgage Loan documents
invalid as a whole, and such Mortgage Loan documents taken as a whole are
enforceable to the extent necessary and customary for the practical
realization of the principal rights and benefits afforded thereby.
(d) The terms of the Mortgage Loans or the related Mortgage Loan
documents, have not been altered, impaired, modified or waived in any
material respect, except prior to the Cut-off Date by written instrument
duly submitted for recordation, to the extent required, and as
specifically set forth in the related Mortgage File.
(e) With respect to each Mortgage which is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, currently
so serves and is named in the deed of trust or has been substituted in
accordance with applicable law, and no fees or expenses are or will become
payable to the trustee under the deed of trust, except in connection with
a trustee's sale after default by the Mortgagor other than de minimis fees
paid in connection with the release of the related Mortgaged Property or
related security for such Mortgage Loan following payment of such Mortgage
Loan in full.
(11) No Mortgage Loan has been satisfied, canceled, subordinated,
released or rescinded, in whole or in part, and the related Mortgagor has not
been released, in whole or in part, from its obligations under any related
Mortgage Loan document.
(12) Except with respect to the enforceability of any provisions
requiring the payment of default interest, late fees, additional interest,
prepayment premiums or yield maintenance charges, neither the Mortgage Loan nor
any of the related Mortgage Loan documents is subject to any right of
rescission, set off, abatement, diminution, valid counterclaim or defense,
including the defense of usury, nor will the operation of any of the terms of
any such Mortgage Loan documents, or the exercise (in compliance with procedures
permitted under applicable law) of any right thereunder, render any Mortgage
Loan documents subject to any right of rescission, set off, abatement,
diminution, valid counterclaim or defense, including the defense of usury
(subject to anti-deficiency or one form of action laws and to bankruptcy,
receivership, conservatorship, reorganization, insolvency, moratorium or other
similar laws affecting the enforcement of creditor's rights generally and to
general principles of equity (regardless of whether such enforcement is
considered in a proceeding in equity or at law)), and no such right of
rescission, set off, abatement, diminution, valid counterclaim or defense has
been asserted with respect thereto. None of the Mortgage Loan documents provides
for a release of a portion of the Mortgaged Property from the lien of the
Mortgage except upon payment or defeasance in full of all obligations under the
Mortgage, provided that, notwithstanding the foregoing, certain of the Mortgage
Loans may allow partial release (a) upon payment or defeasance of an Allocated
Loan Amount which may be formula based, but in no event less than 125% of the
Allocated Loan Amount, or (b) in the event the portion of the Mortgaged Property
being released was not given any material value in connection with the
underwriting or appraisal of the related Mortgage Loan.
(13) As of the Closing Date, there is no payment default, giving
effect to any applicable notice and/or grace period, and, to the Seller's
knowledge, as of the Closing Date, there is no other material default under any
of the related Mortgage Loan documents, giving effect to any applicable notice
and/or grace period; no such material default or breach has been waived by the
Seller or on its behalf or, to the Seller's knowledge, by the Seller's
predecessors in interest with respect to the Mortgage Loans; and, to the
Seller's actual knowledge, no event has occurred which, with the passing of time
or giving of notice would constitute a material default or breach; provided,
however, that the representations and warranties set forth in this sentence do
not cover any default, breach, violation or event of acceleration that
specifically pertains to or arises out of any subject matter otherwise covered
by any other representation or warranty made by the Seller in this Exhibit B. No
Mortgage Loan has been accelerated and no foreclosure or power of sale
proceeding has been initiated in respect of the related Mortgage. The Seller has
not waived any material claims against the related Mortgagor under any
non-recourse exceptions contained in the Mortgage Note.
(14) (a) The principal amount of the Mortgage Loan stated on the
Mortgage Loan Schedule has been fully disbursed as of the Closing Date (except
for certain amounts that were fully disbursed by the mortgagee, but were
escrowed pursuant to the terms of the related Mortgage Loan documents) and there
are no future advances required to be made by the mortgagee under any of the
related Mortgage Loan documents. Any requirements under the related Mortgage
Loan documents regarding the completion of any on-site or off-site improvements
and to disbursements of any escrow funds therefor have been or are being
complied with or such escrow funds are still being held. The value of the
Mortgaged Property relative to the value reflected in the most recent appraisal
thereof is not materially impaired by any improvements which have not been
completed. The Seller has not, nor, to the Seller's knowledge, have any of its
agents or predecessors in interest with respect to the Mortgage Loan, in respect
of payments due on the related Mortgage Note or Mortgage, directly or
indirectly, advanced funds or induced, solicited or knowingly received any
advance of funds by a party other than the Mortgagor other than (a) interest
accruing on such Mortgage Loan from the date of such disbursement of such
Mortgage Loan to the date which preceded by thirty (30) days the first payment
date under the related Mortgage Note and (b) application and commitment fees,
escrow funds, points and reimbursements for fees and expenses, incurred in
connection with the origination and funding of the Mortgage Loan.
(b) No Mortgage Loan has capitalized interest included in its
principal balance, or provides for any shared appreciation rights or other
equity participation therein and no contingent or additional interest
contingent on cash flow or negative amortization (other than with respect
to the deferment of payment with respect to ARD Loans) is due thereon.
(c) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan starts to amortize no later than the Due Date of the calendar
month immediately after the calendar month in which such ARD Loan closed
and substantially fully amortizes over its stated term, which term is at
least 60 months after the related Anticipated Repayment Date. Each ARD
Loan has an Anticipated Repayment Date not less than seven years following
the origination of such Mortgage Loan. If the related Mortgagor elects not
to prepay its ARD Loan in full on or prior to the Anticipated Repayment
Date pursuant to the existing terms of the Mortgage Loan or a unilateral
option (as defined in Treasury Regulations under Section 1001 of the Code)
in the Mortgage Loan exercisable during the term of the Mortgage Loan, (i)
the Mortgage Loan's interest rate will step up to an interest rate per
annum as specified in the related Mortgage Loan documents; provided,
however, that payment of such Excess Interest shall be deferred until the
principal of such ARD Loan has been paid in full; (ii) all or a
substantial portion of the Excess Cash Flow (which is net of certain costs
associated with owning, managing and operating the related Mortgaged
Property) collected after the Anticipated Repayment Date shall be applied
towards the prepayment of such ARD Loan and once the principal balance of
an ARD Loan has been reduced to zero all Excess Cash Flow will be applied
to the payment of accrued Excess Interest; and (iii) if the property
manager for the related Mortgaged Property can be removed by or at the
direction of the mortgagee on the basis of a debt service coverage test,
the subject debt service coverage ratio shall be calculated without taking
account of any increase in the related Mortgage Interest Rate on such
Mortgage Loan's Anticipated Repayment Date. No ARD Loan provides that the
property manager for the related Mortgaged Property can be removed by or
at the direction of the mortgagee solely because of the passage of the
related Anticipated Repayment Date.
(d) Each Mortgage Loan identified in the Mortgage Loan Schedule as
an ARD Loan with a hard lockbox requires that tenants at the related
Mortgaged Property shall (and each Mortgage Loan identified in the
Mortgage Loan Schedule as an ARD Loan with a springing lockbox requires
that tenants at the related Mortgaged Property shall, upon the occurrence
of a specified trigger event, including, but not limited to, the
occurrence of the related Anticipated Repayment Date) make rent payments
into a lockbox controlled by the holder of the Mortgage Loan and to which
the holder of the Mortgage Loan has a first perfected security interest;
provided, however, with respect to each ARD Loan which is secured by a
multi-family property with a hard lockbox, or with respect to each ARD
Loan which is secured by a multi-family property with a springing lockbox,
upon the occurrence of a specified trigger event, including, but not
limited to, the occurrence of the related Anticipated Repayment Date,
tenants either pay rents to a lockbox controlled by the holder of the
Mortgage Loan or deposit rents with the property manager who will then
deposit the rents into a lockbox controlled by the holder of the Mortgage
Loan.
(15) The terms of the Mortgage Loan documents evidencing such
Mortgage Loan comply in all material respects with all applicable local, state
and federal laws and regulations, and the Seller has complied with all material
requirements pertaining to the origination of the Mortgage Loans, including but
not limited to, usury and any and all other material requirements of any
federal, state or local law to the extent non-compliance would have a material
adverse effect on the Mortgage Loan.
(16) To the Seller's knowledge and subject to clause (37) hereof, as
of the date of origination of the Mortgage Loan, based on inquiry customary in
the industry, the related Mortgaged Property was, and to the Seller's actual
knowledge and subject to clause (37) hereof, as of the Closing Date, the related
Mortgaged Property is, in all material respects, in compliance with, and is used
and occupied in accordance with, all restrictive covenants of record applicable
to such Mortgaged Property and applicable zoning laws and all inspections,
licenses, permits and certificates of occupancy required by law, ordinance or
regulation to be made or issued with regard to the Mortgaged Property have been
obtained and are in full force and effect, except to the extent (a) any material
non-compliance with all restrictive covenants of record applicable to such
Mortgaged Property or applicable zoning laws is insured by an ALTA lender's
title insurance policy (or binding commitment therefor), or the equivalent as
adopted in the applicable jurisdiction, or a law and ordinance insurance policy,
or (b) the failure to obtain or maintain such inspections, licenses, permits or
certificates of occupancy does not materially impair or materially and adversely
affect the use and/or operation of the Mortgaged Property as it was used and
operated as of the date of origination of the Mortgage Loan or the rights of a
holder of the related Mortgage Loan.
(17) All (a) taxes, water charges, sewer rents, assessments or other
similar outstanding governmental charges and governmental assessments which
became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), and if left
unpaid, would be, or might become, a lien on such Mortgaged Property having
priority over the related Mortgage and (b) insurance premiums or ground rents
which became due and owing prior to the Closing Date in respect of the related
Mortgaged Property (excluding any related personal property), have been paid, or
if disputed, or if such amounts are not delinquent prior to the Closing Date, an
escrow of funds in an amount sufficient (together with escrow payments required
to be made prior to delinquency) to cover such taxes and assessments and any
late charges due in connection therewith has been established. As of the date of
origination, the related Mortgaged Property was one or more separate and
complete tax parcels. For purposes of this representation and warranty, the
items identified herein shall not be considered due and owing until the date on
which interest or penalties would be first payable thereon.
(18) To the Seller's knowledge based on surveys or the Title
Insurance Policy, (i) none of the improvements that were included for the
purpose of determining the appraised value of the related Mortgaged Property at
the time of the origination of such Mortgage Loan lies outside the boundaries
and building restriction lines of such Mortgaged Property, except to the extent
they are legally nonconforming as contemplated by representation (37) below, and
(ii) no improvements on adjoining properties encroach upon such Mortgaged
Property, except in the case of either (i) or (ii) for (a) immaterial
encroachments which do not materially adversely affect the security intended to
be provided by the related Mortgage or the use, enjoyment, value or
marketability of such Mortgaged Property or (b) encroachments affirmatively
covered by the related Title Insurance Policy. With respect to each Mortgage
Loan, the property legally described in the survey, if any, obtained for the
related Mortgaged Property for purposes of the origination thereof is the same
as the property legally described in the Mortgage.
(19) (a) As of the date of the applicable engineering report (which
was performed within 12 months prior to the Cut-off Date) related to the
Mortgaged Property and, to Seller's knowledge as of the Closing Date, the
related Mortgaged Property is either (i) in good repair, free and clear of any
damage that would materially adversely affect the value of such Mortgaged
Property as security for such Mortgage Loan or the use and operation of the
Mortgaged Property as it was being used or operated as of the origination date
or (ii) escrows in an amount consistent with the standard utilized by the Seller
with respect to similar loans it holds for its own account have been
established, which escrows will in all events be not less than 100% of the
estimated cost of the required repairs. Since the origination date, to the
Seller's actual knowledge, such Mortgaged Property has not been damaged by fire,
wind or other casualty or physical condition (including, without limitation, any
soil erosion or subsidence or geological condition), which damage has not been
fully repaired or fully insured, or for which escrows in an amount consistent
with the standard utilized by the Seller with respect to loans it holds for its
own account have not been established.
(b) As of the origination date of such Mortgage Loan and to the
Seller's actual knowledge, as of the Closing Date, there are no
proceedings pending or, to the Seller's actual knowledge, threatened, for
the partial or total condemnation of the relevant Mortgaged Property.
(20) The Mortgage Loans that are identified on Exhibit A as being
secured in whole or in part by a leasehold estate (a "Ground Lease") (except
with respect to any Mortgage Loan also secured by the related fee interest in
the Mortgaged Property) satisfy the following conditions:
(a) such Ground Lease or a memorandum thereof has been or will be
duly recorded; such Ground Lease or other agreement received by the
originator of the Mortgage Loan from the ground lessor, provides that the
interest of the lessee thereunder may be encumbered by the related
Mortgage and does not restrict the use of the related Mortgaged Property
by such lessee, its successors or assigns, in a manner that would
materially and adversely affect the security provided by the Mortgage; as
of the date of origination of the Mortgage Loan, there was no material
change of record in the terms of such Ground Lease or other agreement with
the exception of written instruments which are part of the related
Mortgage File and Seller has no knowledge of any material change in the
terms of such Ground Lease since the recordation of the related Mortgage,
with the exception of written instruments which are part of the related
Mortgage File;
(b) such Ground Lease or other agreement 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 Permitted Encumbrances
and such Ground Lease or other agreement is, and shall remain, prior to
any mortgage or other lien upon the related fee interest (other than the
Permitted Encumbrances) unless a nondisturbance agreement is obtained from
the holder of any mortgage on the fee interest which is assignable to or
for the benefit of the related lessee and the related mortgagee;
(c) such Ground Lease or other agreement provides that upon
foreclosure of the related Mortgage or assignment of the Mortgagor's
interest in such Ground Lease in lieu thereof, the mortgagee under such
Mortgage is entitled to become the owner of such interest upon notice to,
but without the consent of, the lessor thereunder and, in the event that
such mortgagee (or any of its successors and assigns under the Mortgage)
becomes the owner of such interest, such interest is further assignable by
such mortgagee (or any of its successors and assigns under the Mortgage)
upon notice to such lessor, but without a need to obtain the consent of
such lessor;
(d) such Ground Lease is in full force and effect and no default of
tenant or ground lessor was in existence at origination, or to the
Seller's knowledge, is in existence as of the Closing Date, under such
Ground Lease, nor at origination was, or to the Seller's knowledge, is
there any condition which, but for the passage of time or the giving of
notice, would result in a default under the terms of such Ground Lease;
either such Ground Lease or a separate agreement contains the ground
lessor's covenant that it shall not amend, modify, cancel or terminate
such Ground Lease without the prior written consent of the mortgagee under
such Mortgage and any amendment, modification, cancellation or termination
of the Ground Lease without the prior written consent of the related
mortgagee, or its successors or assigns is not binding on such mortgagee,
or its successor or assigns;
(e) such Ground Lease or other agreement requires the lessor
thereunder to give written notice of any material default by the lessee to
the mortgagee under the related Mortgage, provided that such mortgagee has
provided the lessor with notice of its lien in accordance with the
provisions of such Ground Lease; and such Ground Lease or other agreement
provides that no such notice of default and no termination of the Ground
Lease in connection with such notice of default shall be effective against
such mortgagee unless such notice of default has been given to such
mortgagee and any related Ground Lease or other agreement contains the
ground lessor's covenant that it will give to the related mortgagee, or
its successors or assigns, any notices it sends to the Mortgagor;
(f) either (i) the related ground lessor has subordinated its
interest in the related Mortgaged Property to the interest of the holder
of the Mortgage Loan or (ii) such Ground Lease or other agreement provides
that (A) the mortgagee under the related Mortgage is permitted a
reasonable opportunity to cure any default under such Ground Lease which
is curable, including reasonable time to gain possession of the interest
of the lessee under the Ground Lease, after the receipt of notice of any
such default before the lessor thereunder may terminate such Ground Lease;
(B) in the case of any such default which is not curable by such
mortgagee, or in the event of the bankruptcy or insolvency of the lessee
under such Ground Lease, such mortgagee has the right, following
termination of the existing Ground Lease or rejection thereof by a
bankruptcy trustee or similar party, to enter into a new ground lease with
the lessor on substantially the same terms as the existing Ground Lease;
and (C) all rights of the Mortgagor under such Ground Lease (insofar as it
relates to the Ground Lease) may be exercised by or on behalf of such
mortgagee under the related Mortgage upon foreclosure or assignment in
lieu of foreclosure;
(g) such Ground Lease has an original term (or an original term plus
one or more optional renewal terms that under all circumstances may be
exercised, and will be enforceable, by the mortgagee or its assignee)
which extends not less than 20 years beyond the stated maturity date of
the related Mortgage Loan;
(h) under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds will be applied either to
the repair or restoration of all or part of the related Mortgaged
Property, with the mortgagee under such Mortgage or a financially
responsible institution acting as trustee appointed by it, or consented to
by it, or by the lessor 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 to the payment in whole or in part of the
outstanding principal balance of such Mortgage Loan together with any
accrued and unpaid interest thereon; and
(i) such Ground Lease does not impose any restrictions on subletting
which would be viewed as commercially unreasonable by the Seller; such
Ground Lease contains a covenant (or applicable laws provide) that 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 such 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.
(21) (a) Except for those Mortgage Loans set forth on Schedule I
hereto for which a lender's environmental insurance policy was obtained in lieu
of an Environmental Site Assessment, an Environmental Site Assessment relating
to each Mortgaged Property and prepared no earlier than 12 months prior to the
Closing Date was obtained and reviewed by the Seller in connection with the
origination of such Mortgage Loan and a copy is included in the Servicing File.
(b) Such Environmental Site Assessment does not identify, and the
Seller has no actual knowledge of, any adverse circumstances or conditions
with respect to or affecting the Mortgaged Property that would constitute
or result in a material violation of any Environmental Laws, other than
with respect to a Mortgaged Property (i) for which environmental insurance
(as set forth on Schedule II hereto) is maintained, or (ii) which would
require any expenditure greater than 5% of the outstanding principal
balance of such Mortgage Loan to achieve or maintain compliance in all
material respects with any Environmental Laws for which adequate sums, but
in no event less than 125% of the estimated cost as set forth in the
Environmental Site Assessment, were reserved in connection with the
origination of the Mortgage Loan and for which the related Mortgagor has
covenanted to perform, or (iii) as to which the related Mortgagor or one
of its affiliates is currently taking or required to take such actions, if
any, with respect to such conditions or circumstances as have been
recommended by the Environmental Site Assessment or required by the
applicable governmental authority, or (iv) as to which another responsible
party not related to the Mortgagor with assets reasonably estimated by the
Seller at the time of origination to be sufficient to effect all necessary
or required remediation identified in a notice or other action from the
applicable governmental authority is currently taking or required to take
such actions, if any, with respect to such regulatory authority's order or
directive, or (v) as to which such conditions or circumstances identified
in the Environmental Site Assessment were investigated further and based
upon such additional investigation, an environmental consultant
recommended no further investigation or remediation, or (vi) as to which a
party with financial resources reasonably estimated to be adequate to cure
the condition or circumstance provided a guaranty or indemnity to the
related Mortgagor or to the mortgagee to cover the costs of any required
investigation, testing, monitoring or remediation, or (vii) as to which
the related Mortgagor or other responsible party obtained a "No Further
Action" letter or other evidence reasonably acceptable to a prudent
commercial mortgage lender that applicable federal, state, or local
governmental authorities had no current intention of taking any action,
and are not requiring any action, in respect of such condition or
circumstance, or (viii) which would not require substantial cleanup,
remedial action or other extraordinary response under any Environmental
Laws reasonably estimated to cost in excess of 5% of the outstanding
principal balance of such Mortgage Loan.
(c) To the Seller's actual knowledge and in reliance upon the
Environmental Site Assessment, except for any Hazardous Materials being
handled in accordance with applicable Environmental Laws and except for
any Hazardous Materials present at such Mortgaged Property for which, to
the extent that an Environmental Site Assessment recommends remediation or
other action, (A) there exists either (i) environmental insurance with
respect to such Mortgaged Property (as set forth on Schedule II hereto) or
(ii) an amount in an escrow account pledged as security for such Mortgage
Loan under the relevant Mortgage Loan documents equal to no less than 125%
of the amount estimated in such Environmental Site Assessment as
sufficient to pay the cost of such remediation or other action in
accordance with such Environmental Site Assessment or (B) one of the
statements set forth in clause (b) above is true, (1) such Mortgaged
Property is not being used for the treatment or disposal of Hazardous
Materials; (2) no Hazardous Materials are being used or stored or
generated for off-site disposal or otherwise present at such Mortgaged
Property other than Hazardous Materials of such types and in such
quantities as are customarily used or stored or generated for off-site
disposal or otherwise present in or at properties of the relevant property
type; and (3) such Mortgaged Property is not subject to any environmental
hazard (including, without limitation, any situation involving Hazardous
Materials) which under the Environmental Laws would have to be eliminated
before the sale of, or which could otherwise reasonably be expected to
adversely affect in more than a de minimis manner the value or
marketability of, such Mortgaged Property.
(d) The related Mortgage or other Mortgage Loan documents contain
covenants on the part of the related Mortgagor requiring its compliance
with any present or future federal, state and local Environmental Laws and
regulations in connection with the Mortgaged Property. The related
Mortgagor (or an affiliate thereof) has agreed to indemnify, defend and
hold the Seller, and its successors and assigns, harmless from and against
any and all losses, liabilities, damages, penalties, fines, expenses and
claims of whatever kind or nature (including attorneys' fees and costs)
imposed upon or incurred by or asserted against any such party resulting
from a breach of the environmental representations, warranties or
covenants given by the related Mortgagor in connection with such Mortgage
Loan.
(e) Each of the Mortgage Loans which is covered by a lender's
environmental insurance policy obtained in lieu of an Environmental Site
Assessment ("In Lieu of Policy") is identified on Schedule I, and each In
Lieu of Policy is in an amount equal to 125% of the outstanding principal
balance of the related Mortgage Loan and has a term ending no sooner than
the date which is five years after the maturity date (or, in the case of
an ARD Loan, the final maturity date) of the related Mortgage Loan. All
environmental assessments or updates that were in the possession of the
Seller and that relate to a Mortgaged Property identified on Schedule I as
being insured by an In Lieu of Policy have been delivered to or disclosed
to the In Lieu of Policy carrier issuing such policy prior to the issuance
of such policy.
(22) As of the date of origination of the related Mortgage Loan,
and, as of the Closing Date, the Mortgaged Property is covered by insurance
policies providing the coverage described below and the Mortgage Loan documents
permit the mortgagee to require the coverage described below. All premiums with
respect to the Insurance Policies insuring each Mortgaged Property have been
paid in a timely manner or escrowed to the extent required by the Mortgage Loan
documents, and the Seller has not received any notice of cancellation or
termination. The relevant Servicing File contains the Insurance Policy required
for such Mortgage Loan or a certificate of insurance for such Insurance Policy.
Each Mortgage requires that the related Mortgaged Property and all improvements
thereon are covered by Insurance Policies providing (a) coverage in the amount
of the lesser of full replacement cost of such Mortgaged Property and the
outstanding principal balance of the related Mortgage Loan (subject to customary
deductibles) for losses sustained by fire and against loss or damage by other
risks and hazards covered by a standard extended coverage insurance policy
providing "special" form coverage in an amount sufficient to prevent the
Mortgagor from being deemed a co-insurer and to provide coverage on a full
replacement cost basis of such Mortgaged Property (in some cases exclusive of
foundations and footings) with an agreed amount endorsement to avoid application
of any coinsurance provision; such policies contain a standard mortgage clause
naming mortgagee and its successor in interest as additional insureds or loss
payee, as applicable; (b) business interruption or rental loss insurance in an
amount at least equal to (i) 12 months of operations or (ii) in some cases all
rents and other amounts customarily insured under this type of insurance of the
Mortgaged Property; (c) flood insurance (if any portion of the improvements on
the Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency ("FEMA"), with respect to certain Mortgage Loans and the
Secretary of Housing and Urban Development with respect to other Mortgage Loans,
as having special flood hazards) in an amount not to exceed amounts prescribed
by FEMA; (d) workers' compensation, if required by law; (e) comprehensive
general liability insurance in an amount consistent with the standard utilized
by the Seller with respect to loans it holds for its own account, but not less
than $1 million; all such Insurance Policies contain clauses providing they are
not terminable and may not be terminated without thirty (30) days prior written
notice to the mortgagee (except where applicable law requires a shorter period
or except for nonpayment of premiums, in which case not less than ten (10) days
prior written notice to the mortgagee is required). In addition, each Mortgage
permits the related mortgagee to make premium payments to prevent the
cancellation thereof and shall entitle such mortgagee to reimbursement therefor.
Any insurance proceeds in respect of a casualty loss or taking will be applied
either to the repair or restoration of all or part of the related Mortgaged
Property or the payment of the outstanding principal balance of the related
Mortgage Loan together with any accrued interest thereon. The related Mortgaged
Property is insured by an Insurance Policy, issued by an insurer meeting the
requirements of such Mortgage Loan and having a claims-paying or financial
strength rating of at least "A-:V" from A.M. Best Company or "A-" (or the
equivalent) from Standard & Poor's Ratings Services, Fitch, Inc. or Xxxxx'x
Investors Service, Inc. 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 return period of not less than 100 years, an exposure period of 50
years and a 10% probability of exceedence. 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" by A.M. Best Company or "A-" (or the equivalent)
from Standard & Poor's Ratings Services, Fitch, Inc. or Xxxxx'x Investors
Service, Inc. To the Seller's actual knowledge, the insurer issuing each of the
foregoing insurance policies is qualified to write insurance in the jurisdiction
where the related Mortgaged Property is located.
(23) All amounts required to be deposited by each Mortgagor at
origination under the related Mortgage Loan documents have been deposited or
have been withheld from the related Mortgage Loan proceeds at origination and
there are no deficiencies with regard thereto.
(24) Whether or not a Mortgage Loan was originated by the Seller, to
the Seller's knowledge, with respect to each Mortgage Loan originated by the
Seller and each Mortgage Loan originated by any Person other than the Seller, as
of the date of origination of the related Mortgage Loan, and, to the Seller's
actual knowledge, with respect to each Mortgage Loan originated by the Seller
and any subsequent holder of the Mortgage Loan, as of the Closing Date, there
are no actions, suits, arbitrations or governmental investigations or
proceedings by or before any court or other governmental authority or agency now
pending against or affecting the Mortgagor under any Mortgage Loan or any of the
Mortgaged Properties which, if determined against such Mortgagor or such
Mortgaged Property, would materially and adversely affect the value of such
Mortgaged Property, the security intended to be provided with respect to the
related Mortgage Loan, or the ability of such Mortgagor and/or the current use
of such Mortgaged Property to generate net cash flow to pay principal, interest
and other amounts due under the related Mortgage Loan; and to the Seller's
actual knowledge there are no such actions, suits or proceedings threatened
against such Mortgagor.
(25) The origination, servicing and collection practices used by the
Seller or, to its knowledge, any prior holder of the related Mortgage Note with
respect to such Mortgage Loan have been in all material respects legal and have
met customary industry standards.
(26) The originator of the Mortgage Loan or the Seller has inspected
or caused to be inspected each related Mortgaged Property within the 12 months
prior to the Closing Date.
(27) The Mortgage Loan documents require the Mortgagor to provide
the holder of the Mortgage Loan with at least annual operating statements,
financial statements and except for Mortgage Loans for which the related
Mortgaged Property is leased to a single tenant, rent rolls.
(28) All escrow deposits and payments required by the terms of each
Mortgage Loan are in the possession, or under the control of the Seller (except
to the extent they have been disbursed for their intended purposes), and all
amounts required to be deposited by the applicable Mortgagor under the related
Mortgage Loan documents have been deposited, and there are no deficiencies with
regard thereto (subject to any applicable notice and cure period). All of the
Seller's interest in such escrows and deposits will be conveyed by the Seller to
the Purchaser hereunder.
(29) No two or more Mortgage Loans representing, in the aggregate,
more than 5% of the aggregate outstanding principal amount of all the mortgage
loans included in the Trust Fund have the same Mortgagor or, to the Seller's
knowledge, are to Mortgagors which are entities controlled by one another or
under common control.
(30) Each Mortgagor with respect to a Mortgage Loan with a principal
balance as of the Cut-off Date in excess of $15,000,000 included in the Trust
Fund is an entity whose organizational documents or related Mortgage Loan
documents provide that it is, and at least so long as the Mortgage Loan is
outstanding will continue to be, a Single Purpose Entity. For this purpose,
"Single Purpose Entity" shall mean a Person, other than an individual, whose
organizational documents provide that it shall engage solely in the business of
owning and operating the Mortgaged Property and which does not engage in any
business unrelated to such property and the financing thereof, does not have any
assets other than those related to its interest in the Mortgaged Property or the
financing thereof or any indebtedness other than as permitted by the related
Mortgage or the other Mortgage Loan documents, and the organizational documents
of which require that it have its own separate books and records and its own
accounts, in each case which are separate and apart from the books and records
and accounts of any other Person.
(31) The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (a) such Mortgage Loan is secured by an interest
in real property having a fair market value (i) at the date the Mortgage Loan
was originated at least equal to 80% of the original principal balance of the
Mortgage Loan or (ii) at the Closing Date at least equal to 80% of the original
principal balance of the Mortgage Loan on such date; provided that for purposes
hereof, the fair market value of the real property interest must first be
reduced by (A) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (B) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage Loan
that is cross-collateralized with such Mortgage Loan, in which event the
computation described in sub-clauses (a)(i) and (a)(ii) of this clause (31)
shall be made on a pro rata basis in accordance with the fair market values of
the Mortgaged Properties securing such cross-collateralized Mortgage Loan); or
(b) substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)). If the Mortgage Loan was "significantly modified" prior to
the Closing Date so as to result in a taxable exchange under Section 1001 of the
Code, it either (x) was modified as a result of the default or reasonably
foreseeable default of such Mortgage Loan or (y) satisfies the provisions of
either sub-clause (a)(i) above (substituting the date of the last such
modification for the date the Mortgage Loan was originated) or sub-clause
(a)(ii), including the proviso thereto. The Mortgage Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (but without
regard to the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats
certain defective mortgage loans as qualified mortgages). Any prepayment premium
and yield maintenance charges applicable to the Mortgage Loan constitute
"customary prepayment penalties" within the meaning of Treasury Regulations
Section 1.860G-1(b)(2).
(32) Each of the Mortgage Loans 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 Loan, the property subject to the Mortgage, or any controlling
interest therein, is directly or indirectly transferred or sold (except that it
may provide for transfers by devise, descent or operation of law upon the death
of a member, manager, general partner or shareholder of a Mortgagor and that it
may provide for assignments subject to the Mortgage Loan holder's approval of
transferee, transfers to affiliates, transfers to family members for estate
planning purposes, transfers among existing members, partners or shareholders in
Mortgagors or transfers of passive interests so long as the key principals or
general partner retains control). The Mortgage Loan documents contain a "due on
encumbrance" clause, which provides for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan if the property subject to the
Mortgage or any controlling interest in the Mortgagor is further pledged or
encumbered, unless the prior written consent of the holder of the Mortgage Loan
is obtained (except that it may provide for assignments subject to the Mortgage
Loan holder's approval of transferee, transfers to affiliates or transfers of
passive interests so long as the key principals or general partner retains
control). The Mortgage or Mortgage Note requires the Mortgagor to pay all
reasonable fees and expenses associated with securing the consent or approval of
the holder of the Mortgage for a waiver of a "due on sale" or "due on
encumbrance" clause or a defeasance provision. As of the Closing Date, the
Seller holds no preferred equity interest in any Mortgagor and the Seller holds
no mezzanine debt related to such Mortgaged Property.
(33) Except with respect to the AB Mortgage Loans, each Mortgage
Loan is a whole loan and not a participation interest in a mortgage loan.
(34) Each Mortgage Loan containing provisions for defeasance of
mortgage collateral provides that: defeasance may not occur any earlier than two
years after the Closing Date; and requires or provides (i) the replacement
collateral consist of U.S. "government securities," within the meaning of
Treasury Regulations Section 1.860 G-2(a)(8)(i), in an amount sufficient to make
all scheduled payments under the Mortgage Note when due (up to the maturity date
for the related Mortgage Loan, the Anticipated Repayment Date for ARD Loans or
the date on which the Mortgagor may prepay the related Mortgage Loan without
payment of any prepayment penalty); (ii) the loan may be assumed by a Single
Purpose Entity approved by the holder of the Mortgage Loan; (iii) counsel
provide an opinion that the trustee has a perfected security interest in such
collateral prior to any other claim or interest; and (iv) such other documents
and certifications as the mortgagee may reasonably require which may include,
without limitation, (A) a certification that the purpose of the defeasance is to
facilitate the disposition of the mortgaged real property or any other customary
commercial transaction and not to be part of an arrangement to collateralize a
REMIC offering with obligations that are not real estate mortgages and (B) a
certification from an independent certified public accountant that the
collateral is sufficient to make all scheduled payments under the Mortgage Note
when due. Each Mortgage Loan containing provisions for defeasance provides that,
in addition to any cost associated with defeasance, the related Mortgagor shall
pay, as of the date the mortgage collateral is defeased, all scheduled and
accrued interest and principal due as well as an amount sufficient to defease in
full the Mortgage Loan (except as contemplated in clause (35) hereof). In
addition, if the related Mortgage Loan permits defeasance, then the Mortgage
Loan documents provide that the related Mortgagor shall (x) pay all reasonable
fees associated with the defeasance of the Mortgage Loan and all other
reasonable expenses associated with the defeasance, or (y) provide all opinions
required under the related Mortgage Loan documents, and in the case of loans
with an outstanding principal balance as of the Cut-off Date of $40,000,000 or
greater, (a) a REMIC opinion and (b) rating agency letters confirming that no
downgrade or qualification shall occur as a result of the defeasance.
(35) In the event that a Mortgage Loan is secured by more than one
Mortgaged Property, then, in connection with a release of less than all of such
Mortgaged Properties, a Mortgaged Property may not be released as collateral for
the related Mortgage Loan unless, in connection with such release, an amount
equal to not less than 125% of the Allocated Loan Amount for such Mortgaged
Property is prepaid or, in the case of a defeasance, an amount equal to 125% of
the Allocated Loan Amount is defeased through the deposit of replacement
collateral (as contemplated in clause (34) hereof) sufficient to make all
scheduled payments with respect to such defeased amount, or such release is
otherwise in accordance with the terms of the Mortgage Loan documents.
(36) Each Mortgaged Property is owned by the related Mortgagor,
except for Mortgaged Properties which are secured in whole or in a part by a
Ground Lease and for out-parcels, and is used and occupied for commercial or
multifamily residential purposes in accordance with applicable law.
(37) Any material non-conformity with applicable 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 consistent with the standards
utilized by the Seller.
(38) Neither the Seller nor any affiliate thereof has any obligation
to make any capital contributions to the related Mortgagor under the Mortgage
Loan. The Mortgage Loan was not originated for the sole purpose of financing the
construction of incomplete improvements on the related Mortgaged Property.
(39) No court of competent jurisdiction will determine in a final
decree that fraud, with respect to the Mortgage Loans has taken place on the
part of the Seller or, to the Seller's actual knowledge, on the part of any
originator, in connection with the origination of such Mortgage Loan.
(40) If the related Mortgage or other Mortgage Loan documents
provide for a grace period for delinquent Monthly Payments, such grace period is
no longer than ten (10) days from the applicable payment date.
(41) The following statements are true with respect to the related
Mortgaged Property: (a) the Mortgaged Property is located on or adjacent to a
dedicated road or has access to an irrevocable easement permitting ingress and
egress and (b) the Mortgaged Property is served by public or private utilities,
water and sewer (or septic facilities) and otherwise appropriate for the use in
which the Mortgaged Property is currently being utilized.
(42) None of the Mortgage Loan documents contain any provision that
expressly excuses the related borrower from obtaining and maintaining insurance
coverage for acts of terrorism and, in circumstances where terrorism insurance
is not expressly required, the mortgagee is not prohibited from requesting that
the related borrower maintain such insurance, in each case, to the extent such
insurance coverage is generally available for like properties in such
jurisdictions at commercially reasonable rates. Each Mortgaged Property is
insured by a "standard extended coverage" casualty insurance policy that does
not contain an express exclusion for (or, alternatively, is covered by a
separate policy that insures against property damage resulting from) acts of
terrorism.
(43) An appraisal of the related Mortgaged Property was conducted in
connection with the origination of such Mortgage Loan, and such appraisal
satisfied the guidelines in Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as in effect on the date such Mortgage
Loan was originated.
Defined Terms:
The term "Allocated Loan Amount" shall mean, for each Mortgaged
Property, the portion of principal of the related Mortgage Loan allocated to
such Mortgaged Property for certain purposes (including determining the release
prices of properties, if permitted) under such Mortgage Loan as set forth in the
related loan documents. There can be no assurance, and it is unlikely, that the
Allocated Loan Amounts represent the current values of individual Mortgaged
Properties, the price at which an individual Mortgaged Property could be sold in
the future to a willing buyer or the replacement cost of the Mortgaged
Properties.
The term "Anticipated Repayment Date" shall mean the date on which
all or substantially all of any Excess Cash Flow is required to be applied
toward prepayment of the related Mortgage Loan and on which any such Mortgage
Loan begins accruing Excess Interest.
The term "ARD Loan" shall have the meaning assigned thereto in the
Pooling and Servicing Agreement.
The term "Environmental Site Assessment" shall mean a Phase I
environmental report meeting the requirements of the American Society for
Testing and Materials, and, if in accordance with customary industry standards a
reasonable lender would require it, a Phase II environmental report, each
prepared by a licensed third party professional experienced in environmental
matters.
The term "Excess Cash Flow" shall mean the cash flow from the
Mortgaged Property securing an ARD Loan after payments of interest (at the
Mortgage Interest Rate) and principal (based on the amortization schedule), and
(a) required payments for the tax and insurance fund and ground lease escrows
fund, (b) required payments for the monthly debt service escrows, if any, (c)
payments to any other required escrow funds and (d) payment of operating
expenses pursuant to the terms of an annual budget approved by the Master
Servicer No. 1 and discretionary (lender approved) capital expenditures.
The term "Excess Interest" shall mean any accrued and deferred
interest on an ARD Loan in accordance with the following terms. Commencing on
the respective Anticipated Repayment Date each ARD Loan (pursuant to its
existing terms or a unilateral option, as defined in Treasury Regulations under
Section 1001 of the Code, in the Mortgage Loans exercisable during the term of
the Mortgage Loan) generally will bear interest at a fixed rate (the "Revised
Rate") per annum equal to the Mortgage Interest Rate plus a percentage specified
in the related Mortgage Loan documents. Until the principal balance of each such
Mortgage Loan has been reduced to zero (pursuant to its existing terms or a
unilateral option, as defined in Treasury Regulations under Section 1001 of the
Code, in the Mortgage Loans exercisable during the term of the Mortgage Loan),
such Mortgage Loan will only be required to pay interest at the Mortgage
Interest Rate and the interest accrued at the excess of the related Revised Rate
over the related Mortgage Interest Rate will be deferred (such accrued and
deferred interest and interest thereon, if any, is "Excess Interest").
The term "in reliance on" shall mean that:
(a) the Seller has examined and relied in whole or in part upon one
or more of the specified documents or other information in connection with
a given representation or warranty;
(b) that the information contained in such document or otherwise
obtained by the Seller appears on its face to be consistent in all
material respects with the substance of such representation or warranty;
(c) the Seller's reliance on such document or other information is
consistent with the standard of care exercised by prudent lending
institutions originating commercial mortgage loans; and
(d) although the Seller is under no obligation to verify
independently the information contained in any document specified as being
relied upon by it, the Seller believes the information contained therein
to be true, accurate and complete in all material respects and has no
actual knowledge of any facts or circumstances which would render reliance
thereon unjustified without further inquiry.
The term "Mortgage Interest Rate" shall mean the fixed rate of
interest per annum that each Mortgage Loan bears as of the Cut-off Date.
The term "Permitted Encumbrances" shall mean:
(a) the lien of current real property taxes, water charges, sewer
rents and assessments not yet delinquent or accruing interest or
penalties;
(b) covenants, conditions and restrictions, rights of way, easements
and other matters of public record acceptable to mortgage lending
institutions generally and referred to in the related mortgagee's title
insurance policy;
(c) other matters to which like properties are commonly subject, and
(d) the rights of tenants, as tenants only, whether under ground
leases or space leases at the Mortgaged Property.
which together do not materially and adversely affect the related
Mortgagor's ability to timely make payments on the related Mortgage Loan,
which do not materially interfere with the benefits of the security
intended to be provided by the related Mortgage or the use, for the use
currently being made, the operation as currently being operated,
enjoyment, value or marketability of such Mortgaged Property, provided,
however, that, for the avoidance of doubt, Permitted Encumbrances shall
exclude all pari passu, second, junior and subordinated mortgages but
shall not exclude mortgages that secure Mortgage Loans or Companion Loans
that are cross-collateralized with other Mortgage Loans.
Other. For purposes of these representations and warranties, the
term "to the Seller's knowledge" shall mean that no officer, employee or agent
of the Seller responsible for the underwriting, origination or sale of the
Mortgage Loans or any servicer that has serviced the Mortgage Loan on behalf of
the Seller, believes that a given representation or warranty is not true or is
inaccurate based upon the Seller's reasonable inquiry and during the course of
such inquiry, no such officer, employee or agent of the Seller has obtained any
actual knowledge of any facts or circumstances that would cause such person to
believe that such representation or warranty was inaccurate. Furthermore, 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 Seller's knowledge. For purposes
of these representations and warranties, the term "to the Seller's actual
knowledge" shall mean that a director, officer, employee or agent of the Seller
responsible for the underwriting, origination and sale of the Mortgage Loans
does not actually know of any facts or circumstances that would cause such
person to believe that such representation or warranty was inaccurate.
EXHIBIT C
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
Exceptions to Paragraph (10)(a):
With respect to the following Mortgage Loans, the Mortgagor, but no other
individual or entity, is liable in the event of (i) fraud or intentional
misrepresentation, (ii) misapplication or misappropriation of rents, insurance
proceeds or condemnation awards, (iii) acts of actual waste and (iv) breaches of
environmental covenants contained in the related Mortgage Loan documents:
940952405 Villas at Stonebridge Apartments
Exceptions to Paragraph (14)(b):
With respect to the following Mortgage Loans, if the related Mortgage Note is
not paid in full on its maturity date and the holder thereof exercises its
option to forbear from pursuing its remedies, such Mortgage Loan provides that,
during the period commencing on or about the related maturity date and
continuing until the earlier of such Mortgage Loan being paid in full or the
holder terminating its forbearance, additional interest above the stated
interest rate applicable prior to the maturity date shall accrue and may be
compounded monthly and shall be payable only after all of the outstanding
principal of such Mortgage Loan is paid in full:
940952463 Tullahoma Shopping Center
940952293 Universal Technical Institute
940952231 A+ Mini Storage Xxxxxx
Exceptions to Paragraph (32):
None of the Mortgage Loans provides for acceleration of its unpaid principal
balance if, without the consent of the holder of the related Mortgage Loan, (i)
an equity interest in the related Borrower of 49% or less is transferred or sold
or (ii) an equity interest in the related Borrower of any amount is transferred
by virtue of an involuntary change in ownership resulting from a death or
physical or mental disability.
Exceptions to Paragraph (39):
None of the Mortgage Loans permit the mortgagee to accelerate the unpaid
balance or commence the accrual of default interest without first giving the
Borrower notice of default and a five-day right to cure.
EXHIBIT D
FORM OF OFFICER'S CERTIFICATE
I, Xxxxxxx X. Xxxxxxx, the duly appointed, qualified and acting
Senior Vice President of PNC Bank, National Association, a national banking
association (the "Company"), hereby certify on behalf of the Company as follows:
1. I have examined the Mortgage Loan Purchase Agreement, dated as of
March 1, 2006 (the "Agreement"), between the Company and X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., and all of the representations and
warranties of the Company under the Agreement are true and correct in all
material respects on and as of the date hereof (or, in the case of any
particular representation or warranty set forth on Exhibit B to the Agreement,
as of such other date provided for in such representation or warranty) with the
same force and effect as if made on and as of the date hereof, subject to the
exceptions set forth in the Agreement (including Exhibit C thereto).
2. The Company has complied with all the covenants and satisfied all
the conditions on its part to be performed or satisfied under the Agreement on
or prior to the date hereof and no event has occurred which, with notice or the
passage of time or both, would constitute a default under the Agreement.
3. I have examined the information regarding the Mortgage Loans in
the Prospectus, dated March 15, 2006, as supplemented by the Prospectus
Supplement, dated March 24, 2006 (collectively, the "Prospectus"), relating to
the offering of the Class X-0, Xxxxx X-0, Class A-3FL, Class X-0X, Xxxxx X-0,
Class A-SB, Class A-1A, Class A-M, Class A-J, Class X-2, Class B, Class C and
Class D Certificates, and a Confidential Preliminary Private Placement
Memorandum, dated March 15, 2006 and a Confidential Private Placement
Memorandum, dated March 24, 2006 (each, a "Private Placement Memorandum"),
relating to the offering of the Class X-1, Class E, Class F, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class P and Class NR Certificates,
and the Residual Private Placement Memorandum, dated March 24, 2006 (together
with each Private Placement Memorandum, the "Memoranda"), relating to the
offering of the Class R and Class LR Certificates, and nothing has come to my
attention that would lead me to believe that the Prospectus, as of the date of
the Prospectus Supplement or as of the date hereof, or the Memoranda, as of the
date of the Memoranda or as of the date hereof, included or includes any untrue
statement of a material fact regarding the Company or the Mortgage Loans or
omitted or omits to state therein a material fact necessary in order to make the
statements set forth therein regarding the Company or the Mortgage Loans, in
light of the circumstances under which they were made, not misleading.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, I have signed my name this ____ day of March,
2006.
By:____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
Schedule I
Mortgage Loans with Environmental Insurance Policies in Lieu of Phase I
Reference is made to the Representations and Warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph number set forth below.
Paragraph 21(a) and (e):
None.
Schedule II
Mortgage Loans with Other Environmental Insurance Policies
Reference is made to the representations and warranties set forth in Exhibit B
attached hereto corresponding to the Paragraph numbers set forth below:
None.
