Execution Copy
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated as
of November 8, 2006, between PNC BANK, NATIONAL ASSOCIATION, as seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC. ("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing community mortgage
loans (the "Mortgage Loans") identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as "Annex A". The Purchaser intends to deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial ownership of which
will be evidenced by multiple classes (each, a "Class") of mortgage pass-through
certificates (the "Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC") elections will be made with respect to most of the Trust
Fund. The Trust Fund will be created and the Certificates will be issued
pursuant to a pooling and servicing agreement (the "Pooling and Servicing
Agreement"), to be dated as of November 1, 2006, among CCMSI, as depositor,
Midland Loan Services, Inc. and Wachovia Bank, National Association, as master
servicers (each a "Master Servicer" and, together, the "Master Servicers"), LNR
Partners, Inc., as special servicer (the "Special Servicer"), Xxxxx Fargo Bank,
National Association, as trustee (the "Trustee") and LaSalle Bank National
Association, as certificate administrator (the "Certificate Administrator").
Capitalized terms used herein (including the schedules attached hereto) but not
defined herein (or in such schedules) have the respective meanings set forth in
the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc. ("CGMI"),
LaSalle Financial Services, Inc., PNC Capital Markets LLC and Banc of America
Securities LLC (collectively, the "Dealers"), pursuant to an underwriting
agreement dated as of the date hereof (the "Underwriting Agreement"), between
CCMSI and the Dealers. The Publicly Offered Certificates are more particularly
described in a prospectus supplement dated November 8, 2006 (the "Prospectus
Supplement") and the accompanying base prospectus dated June 8, 2006 (the "Base
Prospectus" and, together with the Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI, pursuant to a
certificate purchase agreement dated as of the date hereof (the "Certificate
Purchase Agreement"), between CCMSI and CGMI. The Privately Offered Certificates
are more particularly described in an offering memorandum dated November 8, 2006
(the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Xxxxx'x Investors Service, Inc. and/or Fitch, Inc. (together, the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof (the
"Indemnification Agreement"), between the Seller, CCMSI and the Dealers.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase, the
Mortgage Loans identified on the Mortgage Loan Schedule. The Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance as of the close of business on the Cut-off Date
(the "Seller Mortgage Loan Balance") of $280,838,443 (subject to a variance of
plus or minus 5.0%), after giving effect to any payments due on or before such
date, whether or not such payments are received. The Seller Mortgage Loan
Balance, together with the aggregate principal balance of the Other Mortgage
Loans as of the Cut-off Date (after giving effect to any payments due on or
before such date whether or not such payments are received), is expected to
equal an aggregate principal balance (the "Cut-off Date Pool Balance") of
$2,238,772,692 (subject to a variance of plus or minus 5.0%). The purchase and
sale of the Mortgage Loans shall take place on November 21, 2006 or such other
date as shall be mutually acceptable to the parties to this Agreement (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of a cash amount, payable in immediately available
funds, as reflected on the settlement statement agreed to by the Seller and the
Purchaser, which amount shall include interest accrued on the Seller Mortgage
Loan Balance for the period from and including the Cut-off Date up to but not
including the Closing Date.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the Aggregate Purchase Price and satisfaction or waiver of the other
conditions to closing that are for the benefit of the Seller, the Seller does
hereby sell, transfer, assign, set over and otherwise convey to the Purchaser,
without recourse (except as set forth in this Agreement), all the right, title
and interest of the Seller in and to the Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing-released basis, together
with all of the Seller's right, title and interest in and to the proceeds of any
related title, hazard, primary mortgage or other insurance and any escrow,
reserve or comparable accounts related to the Mortgage Loans, subject, in the
case of any Mortgage Loan that is part of a Loan Combination, to the rights of
the holder(s) of any other mortgage loan(s) in the related Loan Combination in
such proceeds and reserve or comparable accounts, and further subject to the
understanding that the Seller will sell certain servicing rights to the
applicable Master Servicer pursuant to that certain Servicing Rights Purchase
Agreement, dated as of the Closing Date, between such Master Servicer and the
Seller, and may require that a particular primary servicer remain in place with
respect to any or all of the Mortgage Loans.
(b) The Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off Date, and all
other recoveries of principal and interest collected after the Cut-off Date
(other than in respect of principal and interest on the
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Mortgage Loans due on or before the Cut-off Date). All scheduled payments of
principal and interest due on or before the Cut-off Date but collected after the
Cut-off Date, and recoveries of principal and interest collected on or before
the Cut-off Date (only in respect of principal and interest on the Mortgage
Loans due on or before the Cut-off Date and principal prepayments thereon),
shall belong to, and shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of the
Purchaser, deliver or cause to be delivered to the Trustee (with a copy to the
applicable Master Servicer and the Special Servicer within ten (10) Business
Days after the Closing Date) the documents and instruments specified below under
clauses (i), (ii), (vii), (ix)(A) and (xi)(D) and shall, not later than the date
that is 30 days after the Closing Date, deliver or cause to be delivered to the
Trustee (with a copy to the applicable Master Servicer) the remaining documents
and instruments specified below, in each case with respect to each Mortgage Loan
that is a Serviced Trust Mortgage Loan (the documents and instruments specified
below, collectively, the "Mortgage File"). The Mortgage File for each Serviced
Trust Mortgage Loan shall contain the following documents:
(i) either (A) in the case of any Serviced Trust Mortgage Loan
(including any A-Note Trust Mortgage Loan), the original executed Mortgage
Note including any power of attorney related to the execution thereof,
together with any and all intervening endorsements thereon, endorsed on its
face or by allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of "Xxxxx Fargo Bank, National
Association., as trustee for the registered holders of Citigroup Commercial
Mortgage Trust 2006-C5, Commercial Mortgage Pass-Through Certificates,
Series 2006-C5", or in blank (or a lost note affidavit and indemnity with a
copy of such Mortgage Note attached thereto) or (B) in the case of any
B-Note Non-Trust Mortgage Loan, a copy of the executed Mortgage Note;
(ii) an original or a copy of the Mortgage, together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together with any
and all intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of recording
indicated thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except
for any missing recording information and, if delivered in blank, the name
of the assignee), of (A) the Mortgage, (B) any related Assignment of Leases
(if such item is a document separate from the Mortgage) and (C) any other
recorded document relating to the subject Mortgage Loan otherwise included
in the Mortgage File, in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2006-
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C5, Commercial Mortgage Pass-Through Certificates, Series 2006-C5" (and, in
the case of an A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
(v) an original assignment of all unrecorded documents relating
to the Trust Mortgage Loan (to the extent not already assigned pursuant to
clause (iii) above), in favor of "Xxxxx Fargo Bank, National Association,
as trustee for the registered holders of Citigroup Commercial Mortgage
Trust 2006-C5, Commercial Mortgage Pass-Through Certificates, Series
2006-C5" (and, in the case of an A/B Loan Combination, also on behalf of
the related B-Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the subject Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or located,
an original or copy of an irrevocable, binding commitment (which may be a
pro forma policy or specimen version of, or a marked commitment for, the
policy that has been executed by an authorized representative of the title
company or an agreement to provide the same pursuant to binding escrow
instructions executed by an authorized representative of the title company)
to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing reasonably satisfactory to the Purchaser of any prior
UCC Financing Statements in favor of the originator of the subject Mortgage
Loan or in favor of any assignee prior to the Trustee (but only to the
extent the Seller had possession of such UCC Financing Statements when it
was to deliver the subject Mortgage File on or prior to the Closing Date),
unless not yet returned by the applicable filing office; and, if there is
an effective UCC Financing Statement in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an original UCC
Financing Statement assignment, in form suitable for filing in favor of
"Xxxxx Fargo Bank, National Association, as trustee for the registered
holders of Citigroup Commercial Mortgage Trust 2006-C5, Commercial Mortgage
Pass-Through Certificates, Series 2006-C5" (and, in the case of any A/B
Loan Combination, also on behalf of the related B-Noteholder(s)), as
assignee, or in blank;
(ix) an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) lender's environmental
insurance policy or (D) lease enhancement policy;
(x) any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi) copies of any (A) loan agreement, (B) escrow agreement, (C)
security agreement or (D) letter of credit relating to a Trust Mortgage
Loan (with the original of any such letter of credit to be delivered to the
applicable Master Servicer).
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With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the requirements of
this Agreement for delivery of such document as a part of the Mortgage File of
each of the other Crossed Loans in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage Loan has not
been properly executed, is missing (beyond the time period required for its
delivery hereunder), contains information that does not conform in any material
respect with the corresponding information set forth in the Mortgage Loan
Schedule or does not appear regular on its face.
(d) The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall, as to each
Mortgage Loan, promptly (and in any event, as to any Mortgage Loan, within 90
days following the latest of (i) the Closing Date and (ii) the delivery of the
related Mortgage(s), Assignment(s) of Leases, recordable documents, and UCC
Financing Statements to the Trustee complete (if and to the extent necessary)
and cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment of Mortgage, assignment of Assignment of Leases
and assignment of any other recordable documents relating to each such Mortgage
Loan, in favor of the Trustee referred to in Sections 2(c)(iv)(A), (B) and (C)
and each assignment of a UCC Financing Statement in favor of the Trustee and so
delivered to the Trustee and referred to in Section 2(c)(viii). The Seller shall
cause the recorded original of each such assignment of recordable documents to
be delivered to the Trustee or its designee following recording, and shall cause
the file copy of each such UCC Financing Statement to be delivered to the
Trustee or its designee following filing; provided that in those instances where
the public recording office retains the original assignment of Mortgage or
assignment of Assignment of Leases, the Seller or the Recording/Filing Agent
shall obtain therefrom a certified copy of the recorded original, which shall be
delivered to the Trustee or its designee. If any such document or instrument is
lost or returned unrecorded or unfiled, as the case may be, because of a defect
therein, the Seller shall promptly prepare or cause to be prepared a substitute
therefor or cure such defect, as the case may be, and thereafter cause the same
to be duly recorded or filed, as appropriate. The Seller shall be responsible
for the out-of-pocket costs and expenses of the Recording/Filing Agent in
connection with its performance of the recording, filing and delivery
obligations contemplated above.
(e) The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i) within ten
(10) days after the Closing Date, all documents and records in the Seller's
possession (except draft documents, attorney-client privileged communications
and internal correspondence, credit underwriting or due diligence analyses,
credit committee briefs or memoranda or other internal approval documents or
data or internal worksheets, memoranda, communications or evaluations and other
underwriting analysis of the Seller) relating to, and necessary for the
servicing and administration of, each Mortgage Loan and that are not required to
be part of the Mortgage File in accordance with the definition thereof
(including, without limitation, any original letters of credit relating to any
Mortgage Loan); and (ii) within two (2) Business Days after the Closing Date,
any and all escrow amounts and reserve amounts in the Seller's possession or
under its control that relate to the Mortgage Loans.
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(f) The Seller shall take such actions as are reasonably necessary to
assign or otherwise grant to the Trust Fund the benefit of any letters of credit
in the name of the Seller which secure any Mortgage Loan. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust pursuant to written
instructions from the applicable Master Servicer.
(g) After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association organized and
validly existing and in good standing under the laws of the United States
and possesses all requisite authority, power, licenses, permits and
franchises to carry on its business as currently conducted by it and to
execute, deliver and comply with its obligations under the terms of this
Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Seller and, assuming due authorization,
execution and delivery hereof by the Purchaser, constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights in general, as they may
be applied in the context of the insolvency of a national banking
association, and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law), and by
public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement which purport to provide indemnification from
liabilities under applicable securities laws;
(iii) The execution and delivery of this Agreement by the Seller
and the Seller's performance and compliance with the terms of this
Agreement will not (A) violate the Seller's organizational documents, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a material default (or an event
which, with notice or lapse of time, or both, would constitute a material
default) under, or result in the breach of, any material contract,
agreement or other instrument to which the Seller is a party or by which
the Seller is bound, which violation, default or breach, in the case of
either clause (iii)(B) or (iii)(C) might have consequences that would, in
the Seller's reasonable and good faith judgment, materially and adversely
affect the financial condition or the operations of the Seller or its
properties (taken as a whole) or have consequences that would materially
and adversely affect its performance hereunder;
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(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the financial condition or the
operations of the Seller or its properties (taken as a whole) or have
consequences that would materially and adversely affect its performance
hereunder;
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment,
order, writ, injunction, decree, law or regulation that would, in the
Seller's reasonable and good faith judgment, materially and adversely
affect the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the execution
of this Agreement or the performance by the Seller of its obligations under
this Agreement (except to the extent such consent has been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation of the transactions involving the Seller
contemplated by this Agreement except as have previously been obtained, and
no bulk sale law applies to such transactions;
(vii) No litigation is pending or, to the Seller's knowledge,
threatened against the Seller that would, in the Seller's good faith and
reasonable judgment, prohibit its entering into this Agreement or
materially and adversely affect the performance by the Seller of its
obligations under this Agreement; and
(viii) For purposes of accounting under generally accepted
accounting principles ("GAAP"), and for federal income tax purposes, the
Seller will report the transfer of the Mortgage Loans to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for consideration
contemplated by this Agreement. The consideration received by the Seller
upon the sale of the Mortgage Loans to the Purchaser will constitute at
least reasonably equivalent value and fair consideration for the Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not transferring the Mortgage Loans to the
Purchaser with any intent to hinder, delay or defraud any of the creditors
of the Seller or on account of an antecedent debt.
(b) The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the Purchaser,
which representations and warranties are subject to the exceptions set forth on
Schedule III. References in this Agreement to "Breach" mean a breach of any such
representations and warranties made pursuant to this Section 3(b) with respect
to any Mortgage Loan.
(c) If the Seller receives, pursuant to Section 2.03(a) of the Pooling
and Servicing Agreement, written notice of a Document Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach shall
materially and adversely affect the value of
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the applicable Mortgage Loan or the interests of the Certificateholders therein,
then the Seller shall, not later than ninety (90) days from receipt of such
notice (or, in the case of a Document Defect or Breach relating to a Mortgage
Loan not being a "qualified mortgage" within the meaning of the REMIC Provisions
(a "Qualified Mortgage"), not later than ninety (90) days from any party to the
Pooling and Servicing Agreement discovering such Document Defect or Breach,
provided the Seller receives such notice in a timely manner), cure such Document
Defect or Breach, as the case may be, in all material respects, or, if such
Document Defect or Breach (other than omissions solely due to a document not
having been returned by the related recording office) cannot be cured within
such 90-day period, (i) repurchase the affected Mortgage Loan at the applicable
Purchase Price not later than the end of such 90-day period, or (ii) substitute
a Qualified Substitute Mortgage Loan for such affected Mortgage Loan not later
than the end of such 90-day period (and in no event later than the second
anniversary of the Closing Date) and pay the applicable Master Servicer for
deposit into its Collection Account, any Substitution Shortfall Amount in
connection therewith; provided that, if a Document Defect or Breach is capable
of being cured but not within such 90-day period and the Seller has commenced
and is diligently proceeding with the cure of such Document Defect or Breach
within such 90-day period, then unless such Document Defect or Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, such Seller shall have
an additional 90 days to complete such cure (or, failing such cure, to
repurchase or substitute for the related Mortgage Loan); and provided, further,
that with respect to such additional 90-day period the Seller shall have
delivered an officer's certificate to the Trustee setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; and provided, further, that if the cure of any
Document Defect or Breach would require an expenditure on the part of the Seller
in excess of $10,000, then the Seller may, at its option, within the time period
provided above, elect to purchase or replace the affected Mortgage Loan in
accordance with this Section 3 without attempting to cure such Document Defect
that, to the Seller's knowledge, existed as of the Closing Date, or Breach, as
the case may be. For a period of two years from the Closing Date, so long as
there remains any Mortgage File relating to a Mortgage Loan as to which there is
an uncured Document Defect that shall materially and adversely affect the value
of the applicable Mortgage Loan or the interests of the Certificateholders
therein, the Seller shall provide the officer's certificate to the Trustee
described above as to the reasons such Document Defect remains uncured and as to
the actions being taken to pursue cure.
No substitution of a Qualified Substitute Mortgage Loan or Qualified
Substitute Mortgage Loans may be made in any calendar month after the
Determination Date in such month. Periodic Payments due with respect to any
Qualified Substitute Mortgage Loan after the related due date in the month of
substitution shall be part of the Trust Fund, and Periodic Payments received
with respect to the replaced Mortgage Loan or a repurchased Mortgage Loan after
the related date of substitution or repurchase, as the case may be, shall belong
to the Seller. Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan on or prior to the related due date in the month of substitution
shall not be part of the Trust Fund and shall be remitted to the Seller promptly
following receipt, and Periodic Payments received with respect to the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including the related
date of substitution or repurchase, as the case may be, shall belong to the
Trust Fund.
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(d) If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is a
Crossed Loan, and (iii) the applicable Document Defect or Breach does not
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to each other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the Seller
will be required to repurchase or substitute for the remaining Crossed Loan(s)
in the related Crossed Group as provided in the immediately preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall have furnished
the Trustee with an Opinion of Counsel to the effect that the repurchase of or
substitution for the affected Crossed Loan only, including, without limitation,
any modification required with respect to such repurchase or substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or substitution for
the affected Crossed Loan only shall satisfy all other criteria for repurchase
or substitution, as applicable, of Mortgage Loans set forth herein or in the
Pooling and Servicing Agreement. If the conditions set forth in clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect either to
repurchase or substitute for only the affected Crossed Loan as to which the
related Document Defect or Breach exists or to repurchase or substitute for all
of the Crossed Loans in the related Crossed Group. The Seller shall be
responsible for the cost of any Appraisal required to be obtained by the
applicable Master Servicer to determine if the Crossed Loan Repurchase Criteria
have been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld). To the
extent that the Seller is required to purchase or substitute for a Crossed Loan
hereunder in the manner prescribed above while the Purchaser continues to hold
any other Crossed Loans in such Crossed Group, neither the Seller nor the
Purchaser shall enforce any remedies against the other's Primary Collateral, but
each is permitted to exercise remedies against the Primary Collateral securing
its respective Crossed Loans, including, with respect to the Purchaser, the
Primary Collateral securing the Crossed Loans still held by the Purchaser, so
long as such exercise does not materially impair the ability of the other party
to exercise its remedies against its Primary Collateral.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents or, if not specified in the
related Mortgage Loan documents, on a pro rata basis based upon their
outstanding Stated Principal Balances. Notwithstanding the foregoing, if a
Crossed Loan included in the Trust Fund is modified to terminate the related
cross-collateralization and/or cross-default provisions, as a condition to such
modification, the Seller shall furnish to the Trustee an Opinion of Counsel that
such modification shall not cause an Adverse REMIC Event. Any expenses incurred
by the Purchaser in connection with such modification or accommodation
(including but not limited to recoverable attorney fees) shall be paid by the
Seller.
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Notwithstanding any of the foregoing provisions of this Section 3(d),
if there is a Document Defect or Breach (which Document Defect or Breach shall
materially and adversely affect the value of the related Mortgage Loan or the
interests of the Certificateholders therein) with respect to one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the affected
Mortgaged Property(ies) may be released pursuant to the terms of any partial
release provisions in the related Mortgage Loan documents (and such Mortgaged
Property(ies) are, in fact, released) and, to the extent not covered by the
applicable release price (if any) required under the related Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional amounts
necessary to cover all reasonable out-of-pocket expenses reasonably incurred by
the applicable Master Servicer, the Special Servicer, the Trustee, the
Certificate Administrator or the Trust Fund in connection with such release,
(ii) the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the related Mortgage Loan documents and the Seller provides an opinion
of counsel to the effect that such release would not cause any REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a REMIC under
the Code or result in the imposition of any tax on "prohibited transactions" or
"contributions" after the Startup Day under the REMIC Provisions and (iii) the
Seller obtains from each Rating Agency then rating the Certificates and delivers
to the Trustee and the applicable Master Servicer written confirmation that such
release would not cause the then-current ratings of the Certificates rated by it
to be qualified, downgraded or withdrawn.
(e) In connection with any permitted repurchase or substitution of one
or more Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Collection Account
maintained by the applicable Master Servicer, and the delivery of the Mortgage
File(s) and the Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer, respectively, if
applicable, (i) the Trustee shall execute and deliver such endorsements and
assignments as are provided to it by the applicable Master Servicer or the
Seller, in each case without recourse, representation or warranty, as shall be
necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased Mortgage Loan or replaced Mortgage Loan, as applicable, (ii) the
Trustee, the applicable Master Servicer and the Special Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt executed by the
Seller, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and (iii) the applicable Master Servicer and the
Special Servicer shall release to the Seller any Escrow Payments and Reserve
Funds held by it in respect of such repurchased or replaced Mortgage Loans.
(f) This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach and the Purchaser acknowledges and
agrees that the representations and warranties made herein by the Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
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SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
the full corporate power and authority and legal right to acquire the Mortgage
Loans from the Seller and to transfer the Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such enforcement
may be limited by (i) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (ii) other laws relating to or affecting the rights
of creditors generally, or (iii) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(c) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any judgment, order,
writ, injunction, decree, law or regulation that would, in the Purchaser's
reasonable and good faith judgment, materially and adversely affect the ability
of the Purchaser to perform its obligations under this Agreement or that
requires the consent of any third person to the execution of this Agreement or
the performance by the Purchaser of its obligations under this Agreement (except
to the extent such consent has been obtained).
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by such Purchaser of, or compliance by such Purchaser with, this
Agreement or the consummation of the transactions of such contemplated by this
Agreement, except for any consent, approval, authorization or order which has
been obtained prior to the actual performance by such Purchaser of its
obligations under this Agreement, or which, if not obtained would not have a
materially adverse effect on the ability of such Purchaser to perform its
obligations hereunder.
(e) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, and the execution, delivery
or performance of this Agreement by the Purchaser, results or will result in the
creation or imposition of any lien on any of the Purchaser's assets or property,
or conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (i) any term or provision of the
Purchaser's articles of association or bylaws, (ii) any term or provision of any
material agreement, contract, instrument or indenture, to which the Purchaser is
a party or by which the Purchaser is bound, or (iii) any law, rule, regulation,
order, judgment, writ, injunction or decree of any court or governmental
authority having jurisdiction over the Purchaser or its assets, which default
might have consequences that would, in the Purchaser's reasonable and good faith
judgment, materially and adversely affect the condition (financial or other) or
operations of the
11
Purchaser or its properties or have consequences that would materially and
adversely affect its performance hereunder.
(f) Under GAAP and for federal income tax purposes, the Purchaser will
report the transfer of the Mortgage Loans by the Seller to the Purchaser as a
sale of the Mortgage Loans to the Purchaser in exchange for the consideration
contemplated by this Agreement.
(g) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would, in
the Purchaser's reasonable and good faith judgment, materially and adversely
affect the validity of this Agreement or any action taken in connection with the
obligations of the Purchaser contemplated herein, or which would be likely to
impair materially the ability of the Purchaser to enter into and/or perform
under the terms of this Agreement.
(h) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans (the
"Closing") shall be held at the offices of Sidley Austin LLP, New York, New York
on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Section 3(a) and Section 3(b) of this Agreement and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement shall be true and correct in all material respects as of the
Closing Date;
(b) The Pooling and Servicing Agreement (to the extent it affects the
obligations of the Seller hereunder) and all documents specified in Section 6 of
this Agreement (the "Closing Documents"), in such forms as are agreed upon and
acceptable to CCMSI, the Seller, the Dealers and their respective counsel in
their reasonable discretion, shall be duly executed and delivered by all
signatories as required pursuant to the respective terms thereof;
(c) The Seller or its designee shall have delivered and released to
the Trustee (or a Custodian on its behalf) and the applicable Master Servicer,
respectively, all documents represented to have been or required to be delivered
to the Trustee and such Master Servicer on or before the Closing Date pursuant
to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects and the Seller and the Purchaser shall each have the ability
to comply with all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
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(e) The Seller shall have paid all fees and expenses payable by it to
CCMSI or otherwise pursuant to this Agreement as of the Closing Date; and
(f) Letters from an independent accounting firm reasonably acceptable
to CCMSI and the Seller in form satisfactory to CCMSI, relating to certain
information regarding the Mortgage Loans and Certificates as set forth in the
Prospectus, the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all parties thereto;
(b) A certificate of the Seller, executed by the Seller and dated the
Closing Date, and upon which CCMSI and the Dealers may rely, to the effect that:
(i) the representations and warranties of the Seller in this Agreement and the
Indemnification Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on such date, subject, in
the case of the representations and warranties made by the Seller pursuant to
Section 3(b) of this Agreement, to the exceptions to such representations and
warranties set forth in Schedule III to this Agreement; and (ii) the Seller has,
in all material respects, complied with all the agreements and satisfied all the
conditions on its part that are required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(c) An officer's certificate from the Seller, dated the Closing Date,
and upon which CCMSI and the Dealers may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at the
respective times of such signing and delivery, and is as of the Closing Date,
duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) True and complete copies of the articles of association and
by-laws of the Seller (as certified to by the Secretary or an assistant
secretary of the Seller), and a certificate of corporate existence of the Seller
issued by the Office of the Comptroller of the Currency not earlier than thirty
(30) days prior to the Closing Date;
(e) A written opinion of counsel for the Seller (which opinion may be
from in-house counsel, outside counsel or a combination thereof), relating to
certain corporate and enforceability matters and reasonably satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the Dealers and
the Rating Agencies, together with such other written opinions as may be
required by the Rating Agencies;
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(f) Such further certificates, opinions and documents as the Purchaser
may reasonably request prior to the sale of the Mortgage Loans by the Seller to
the Purchaser; and
(g) A written opinion of counsel for the Purchaser (which opinion may
be from in-house counsel, outside counsel, or a combination thereof, and may
include a reliance letter addressed to the Seller with respect to opinions given
to other parties) relating to certain corporate and enforceability matters and
reasonably satisfactory to the Seller and its counsel, dated the Closing Date
and addressed to the Seller.
SECTION 7. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the Seller Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact amount of which
shall be as set forth in or determined pursuant to the memorandum of
understanding, to which the Seller and the Purchaser (or affiliates thereof) are
parties, with respect to the transactions contemplated by this Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus and Memorandum and other customary offering
materials relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee and the Certificate Administrator (including reasonable
attorneys' fees) incurred in connection with the securitization of the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by the
Securities and Exchange Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans, the Other Mortgage Loans and the
Certificates included in the Prospectus, the Memorandum and other customary
offering materials, including the cost of obtaining any "comfort letters" with
respect to such items; (vii) the reasonable out-of-pocket costs and expenses in
connection with the qualification or exemption of the Certificates under state
securities or "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel in connection therewith, in connection with the
preparation of any "Blue Sky" survey and in connection with any determination of
the eligibility of the Certificates for investment by institutional investors
and the preparation of any legal investment survey; (viii) the expenses of
printing any such "Blue Sky" survey and legal investment survey; and (ix) the
reasonable fees and disbursements of counsel to the Dealers. All other costs and
expenses in connection with the transactions contemplated hereunder shall be
borne by the party incurring such expense.
SECTION 8. Grant of a Security Interest. It is the express intent of
the parties hereto that the conveyance of the Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale of
the Mortgage Loans by the Seller to the Purchaser and not as a pledge of the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) the conveyance provided for
in
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Section 2 hereof shall be deemed to be a grant by the Seller to the Purchaser
of a security interest in all of the Seller's right, title and interest in and
to the Mortgage Loans, and all amounts payable to the holder of the Mortgage
Loans in accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Collection
Accounts, the Distribution Account or, if established, the REO Accounts (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser in and to the Mortgage Loans pursuant to the
Pooling and Servicing Agreement, as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, and such other items of property as
constitute instruments, money, negotiable documents or chattel paper shall be
deemed to be possession by the secured party for purposes of perfecting the
security interest pursuant to Section 9-313 of the Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, securities
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under applicable law. The Seller
and the Purchaser shall, to the extent consistent with this Agreement, take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement and the
Pooling and Servicing Agreement, and in connection therewith the Seller
authorizes the Purchaser to file any and all appropriate Uniform Commercial Code
financing statements.
SECTION 9. Notices. All notices, copies, requests, consents, demands
and other communications in connection herewith shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified for such party on Exhibit A hereto or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to the
other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or
15
covenant of this Agreement that is prohibited or unenforceable or is held to be
void or unenforceable in any particular jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any particular jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law which prohibits or renders void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but which together shall
constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser regarding their respective
rights and obligations under this Agreement, the prevailing party shall be
entitled to recover, in addition to damages or other relief, costs and expenses,
attorneys' fees and court costs (including, without limitation, expert witness
fees). As used herein, the term "prevailing party" shall mean the party which
obtains the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the other
party, such other party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the Purchaser agree to
execute and deliver such instruments and take such further actions as the other
party may, from time to time, reasonably request in order to effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of the
Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser and their permitted successors and assigns. No holder or beneficial
owner of a Certificate shall be deemed a permitted successor or assign to the
Purchaser solely by reason of its interest in such Certificate.
16
SECTION 17. Amendments. No term or provision of this Agreement may be
waived or modified unless such waiver or modification is in writing and signed
by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. No amendment to the Pooling and Servicing
Agreement which relates to defined terms contained therein, Section 2.01(d)
thereof or the repurchase obligations or any other obligations of the Seller
shall be effective against the Seller (in such capacity) unless the Seller shall
have agreed to such amendment in writing.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate
with accountants designated by CCMSI and reasonably acceptable to the Seller in
making available all information and taking all steps reasonably necessary to
permit such accountants to deliver the letters required by the Underwriting
Agreement and/or the Certificate Purchase Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or other
statement in this Agreement is made with respect to a Person's "knowledge", such
statement refers to such Person's employees or agents who were or are
responsible for or involved with the indicated matter and have actual knowledge
of the matter in question.
SECTION 20. Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
PURCHASER
CITIGROUP COMMERCIAL MORTGAGE
SECURITIES INC.
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
MORTGAGE LOAN PURCHASE AGREEMENT
EXHIBIT A
ADDRESS FOR NOTICES
Seller:
Address for Notices:
PNC Bank, National Association
00000 Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxx Xxxx
Purchaser:
Address for Notices:
Citigroup Commercial Mortgage Securities Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxx
Facsimile Number: (000) 000-0000
SCHEDULE I
GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES
1. The information pertaining to each Mortgage Loan set forth in the
Mortgage Loan Schedule was true and correct in all material respects as of
the Cut-off Date.
2. As of the date of its origination, such Mortgage Loan and the
interest (exclusive of any default interest, late charges or prepayment
premiums) contracted for thereunder, complied in all material respects
with, or was exempt from, all requirements of federal, state or local law
relating to the origination of such Mortgage Loan, including those
pertaining to usury.
3. Immediately prior to the sale, transfer and assignment to the
Purchaser, the Seller had good title to, and was the sole owner of, each
Mortgage Loan and the Seller is transferring such Mortgage Loan free and
clear of any and all liens, pledges, charges or security interests of any
nature encumbering such Mortgage Loan, but subject to certain agreements
regarding servicing as provided in the Pooling and Servicing Agreement,
subservicing agreements permitted thereunder and that certain Servicing
Rights Purchase Agreement dated as of the Closing Date between the
applicable Master Servicer and the Seller. Upon consummation of the
transactions contemplated by the Mortgage Loan Purchase Agreement, the
Seller will have validly and effectively conveyed to the Purchaser all
legal and beneficial interest in and to such Mortgage Loan free and clear
of any pledge, lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed
(except to the extent that a portion of such proceeds is being held in
escrow or reserve accounts) and there is no requirement for future advances
thereunder by the Mortgagee.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if any)
and other agreement executed by the Mortgagor in connection with such
Mortgage Loan is a legal, valid and binding obligation of the related
Mortgagor (subject to any non-recourse provisions therein and any state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except (a) that certain provisions contained
in such Mortgage Loan documents are or may be unenforceable in whole or in
part under applicable state or federal laws, but neither the application of
any such laws to any such provision nor the inclusion of any such
provisions renders any of the Mortgage Loan documents invalid as a whole
and such Mortgage Loan documents taken as a whole are enforceable to the
extent necessary and customary for the practical realization of the
principal rights and benefits afforded thereby and (b) as such enforcement
may be limited by bankruptcy, insolvency, receivership, reorganization,
moratorium, redemption, liquidation or other laws affecting the enforcement
of creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
I-1
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person.
6. As of the date of its origination, there was no valid offset,
defense, counterclaim, abatement or right to rescission with respect to any
of the related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, Additional Interest, prepayment premiums or
yield maintenance charges.
7. Each related assignment of Mortgage and assignment of Assignment of
Leases from the Seller to the Trustee constitutes the legal, valid and
binding assignment from the Seller, except as such enforcement may be
limited by bankruptcy, insolvency, redemption, reorganization, liquidation,
receivership, moratorium or other laws relating to or affecting creditors'
rights generally or by general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law). Each
Mortgage and Assignment of Leases is freely assignable.
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the exceptions and limitations
set forth in representation (5) above and the following title exceptions
(each such title exception, a "Title Exception", and collectively, the
"Title Exceptions"): (a) the lien of current real property taxes, ground
rents, water charges, sewer rents and assessments not yet delinquent or
accruing interest or penalties, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of which,
individually or in the aggregate, materially and adversely interferes with
the current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property, (c) the exceptions
(general and specific) and exclusions set forth in the applicable policy
described in representation (12) below or appearing of record, none of
which, individually or in the aggregate, materially interferes with the
current use of the Mortgaged Property or the security intended to be
provided by such Mortgage or with the Mortgagor's ability to pay its
obligations under the Mortgage Loan when they become due or materially and
adversely affects the value of the Mortgaged Property, (d) other matters to
which like properties are commonly subject, none of which, individually or
in the aggregate, materially and adversely interferes with the current use
of the Mortgaged Property or the security intended to be provided by such
Mortgage or with the Mortgagor's ability to pay its obligations under the
Mortgage Loan when they become due or materially and adversely affects the
value of the Mortgaged Property, (e) the right of tenants (whether under
ground leases, space leases or operating leases) at the Mortgaged Property
to remain following a foreclosure or similar proceeding (provided that such
tenants are performing under such leases), (f) if such Mortgage Loan is
cross-collateralized with any other Mortgage Loan, the lien of the Mortgage
for such other Mortgage Loan, and (g) if such Mortgage Loan is part of a
Loan Combination, the lien of
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the Mortgage for the related Non-Trust Loan(s). Except with respect to
cross-collateralized and cross-defaulted Mortgage Loans and Mortgage Loans
that are part of a Loan Combination, there are no mortgage loans that are
senior or pari passu in right of payment with the subject Mortgage Loan
that are secured by the related Mortgaged Property.
9. UCC Financing Statements have been filed and/or recorded (or, if
not filed and/or recorded, have been submitted in proper form for filing
and recording) in all public places necessary at the time of the
origination of each Mortgage Loan to perfect a valid security interest in
all items of personal property reasonably necessary to operate the
Mortgaged Property owned by a Mortgagor and located on the related
Mortgaged Property (other than any personal property subject to a purchase
money security interest or a sale and leaseback financing arrangement
permitted under the terms of such Mortgage Loan or any other personal
property leases applicable to such personal property), to the extent
perfection may be effected pursuant to applicable law by recording or
filing of UCC Financing Statements, and the Mortgages, security agreements,
chattel mortgages or equivalent documents related to and delivered in
connection with the related Mortgage Loan establish and create a valid and
enforceable lien and security interest on such items of personalty except
as such enforcement may be limited by bankruptcy, insolvency, receivership,
reorganization, moratorium, redemption, liquidation or other laws affecting
the enforcement of creditor's rights generally, or by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law). Notwithstanding any of the foregoing, no
representation is made as to the perfection of any security interest in
rents or other personal property to the extent that possession or control
of such items or actions other than the filing of UCC Financing Statements
are required in order to effect such perfection.
10. All real estate taxes and governmental assessments, or
installments thereof, which would be a lien on the Mortgaged Property and
that prior to the Cut-off Date have become delinquent in respect of each
related Mortgaged Property, have been paid, or an escrow of funds in an
amount sufficient (together with escrow payments required to be made prior
to delinquency) to cover such payments has been established. For purposes
of this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. To the Seller's actual knowledge as of the Cut-off Date, and to
the Seller's actual knowledge based solely upon due diligence customarily
performed with the origination of comparable mortgage loans by the Seller,
each related Mortgaged Property was free and clear of any material damage
(other than deferred maintenance for which escrows were established at
origination) that would materially and adversely affect the value of such
Mortgaged Property as security for the Mortgage Loan, and to the Seller's
actual knowledge as of the Cut-off Date there was no proceeding pending for
the total or partial condemnation of such Mortgaged Property.
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12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan (and, in the case of a
Mortgage Loan that is part of a Loan Combination, in the original
(aggregate, if applicable) principal amount of the other mortgage loan(s)
constituting the related Loan Combination) after all advances of principal
(as set forth on the Mortgage Loan Schedule) is insured by an ALTA lender's
title insurance policy (or a binding commitment therefor), or its
equivalent as adopted in the applicable jurisdiction, insuring the Seller,
its successors and assigns, subject only to the Title Exceptions; the
Seller or its successors or assigns is the named insured of such policy;
such policy is assignable in connection with the assignment of the related
Mortgage Note without consent of the insurer and will inure to the benefit
of the Trustee as mortgagee of record; such policy is in full force and
effect upon the consummation of the transactions contemplated by this
Agreement; all premiums thereon have been paid; no material claims have
been made under such policy and the Seller has not done anything, by act or
omission, and the Seller has no actual knowledge of any matter, which would
impair or diminish the coverage of such policy. The insurer issuing such
policy is either (x) a nationally recognized title insurance company or (y)
qualified to do business in the jurisdiction in which the related Mortgaged
Property is located to the extent required; and such policy contains no
material exclusions for, or affirmatively insures (except for any Mortgaged
Property located in a jurisdiction where such insurance is not available)
(a) access to a public road or (b) against any loss due to encroachments of
any material portion of the improvements thereon.
13. As of the date of its origination, all insurance coverage required
under each related Mortgage was in full force and effect with respect to
each related Mortgaged Property, which insurance covered such risks as were
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, and with respect to a fire and extended perils
insurance policy, was in an amount (subject to a customary deductible) at
least equal to the lesser of (i) the replacement cost of improvements
located on such Mortgaged Property, or (ii) the original principal balance
of the Mortgage Loan (and, in the case of a Mortgage Loan that is part of a
Loan Combination, in the original (aggregate, if applicable) principal
amount of the other mortgage loan(s) constituting the related Loan
Combination), and in any event, in an amount necessary to prevent operation
of any co-insurance provisions, and, except if such Mortgaged Property is
operated as a manufactured housing community, such Mortgaged Property is
also covered by business interruption or rental loss insurance, in an
amount at least equal to twelve (12) months of operations of the related
Mortgaged Property (or in the case of a Mortgaged Property without any
elevator, six (6) months); and as of the Cut-off Date, to the actual
knowledge of the Seller, all insurance coverage required under each
Mortgage, which insurance covers such risks and is in such amounts as are
customarily acceptable to prudent commercial and multifamily mortgage
lending institutions lending on the security of property comparable to the
related Mortgaged Property in the jurisdiction in which such Mortgaged
Property is located, is in full force and effect with respect to each
related Mortgaged Property; and all premiums due and payable through the
Closing Date have been paid; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller.
Except for certain amounts not greater than amounts which would be
considered prudent
I-4
by a commercial and multifamily mortgage lending institution with respect
to a similar mortgage loan and which are set forth in the related Mortgage,
any insurance proceeds in respect of a casualty loss are required to be
applied either (i) to the repair or restoration of all or part of the
related Mortgaged Property or (ii) to the reduction of the outstanding
principal balance of the Mortgage Loan, subject in either case to
requirements with respect to leases at the related Mortgaged Property and
to other exceptions customarily provided for by prudent commercial and
multifamily mortgage lending institutions for similar loans. The Mortgaged
Property is also covered by comprehensive general liability insurance
against claims for personal and bodily injury, death or property damage
occurring on, in or about the related Mortgaged Property, in an amount
customarily required by prudent commercial and multifamily mortgage lending
institutions.
The insurance policies contain a standard mortgagee clause naming the
holder of the related Mortgage, its successors and assigns as loss payee,
in the case of a property insurance policy, and additional insured in the
case of a liability insurance policy, and provide that they are not
terminable without thirty (30) days prior written notice to the Mortgagee
(or, with respect to non-payment, ten (10) days prior written notice to the
Mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage requires that the Mortgagor maintain insurance as described above
or permits the Mortgagee to require insurance as described above, and
permits the Mortgagee to purchase such insurance at the Mortgagor's expense
if Mortgagor fails to do so.
14. Other than payments due but not yet thirty (30) days or more
delinquent, to the Seller's actual knowledge, based upon due diligence
customarily performed with the servicing of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions, there is
no material default, breach, violation or event of acceleration existing
under the related Mortgage or the related Mortgage Note, and to the
Seller's actual knowledge no event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the
expiration of any grace or cure period, would constitute a material
default, breach, violation or event of acceleration; provided, however,
that this representation and warranty does not address or otherwise cover
any default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any paragraph of this Schedule I or in any
paragraph of Schedule II; and the Seller has not waived any material
default, breach, violation or event of acceleration under such Mortgage or
Mortgage Note, except for a written waiver contained in the related
Mortgage File being delivered to the Purchaser, and pursuant to the terms
of the related Mortgage or the related Mortgage Note and other documents in
the related Mortgage File, no Person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the
prior twelve (12 ) months (or since the date of origination if such
Mortgage Loan has been originated within the past twelve (12 ) months), has
not been, thirty (30) days or more past due in respect of any Scheduled
Payment.
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16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment
Date, the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. No related Mortgage provides for or permits, without the prior
written consent of the holder of the Mortgage Note, any related Mortgaged
Property to secure any other promissory note or obligation except as
expressly described in such Mortgage or other Mortgage Loan document.
18. Each Mortgage Loan is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (a)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d)) and
such interest in real property was the only security for such Mortgage Loan
as of the Testing Date (as defined below), or (b) the fair market value of
the interest in real property which secures such Mortgage Loan was at least
equal to 80% of the principal amount of such Mortgage Loan (i) as of the
Testing Date, or (ii) as of the Closing Date. For purposes of the previous
sentence, (A) the fair market value of the referenced interest in real
property shall first be reduced by (1) the amount of any lien on such
interest in real property that is senior to such Mortgage Loan, and (2) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (B) the "Testing Date" shall be the
date on which the referenced Mortgage Loan was originated unless (1) such
Mortgage Loan was modified after the date of its origination in a manner
that would cause a "significant modification" of such Mortgage Loan within
the meaning of Treasury Regulations Section 1.1001-3(b), and (2) such
"significant modification" did not occur at a time when such Mortgage Loan
was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its origination
and at a time when such Mortgage Loan was not in default or when default
with respect to such Mortgage Loan was not reasonably foreseeable, the
Testing Date shall be the date upon which the latest such "significant
modification" occurred.
19. One or more environmental site assessments, updates or transaction
screens thereof were performed by an environmental consulting firm
independent of the Seller and the Seller's affiliates with respect to each
related Mortgaged Property during the 18-months preceding the origination
of the related Mortgage Loan, except for those Mortgage Loans identified on
Annex A to this Schedule I for which a lender's environmental insurance
policy was obtained in lieu of such environmental site assessments, updates
and transaction screens, and the Seller, having made no independent inquiry
other than to review the report(s) prepared in connection with the
assessment(s), updates or transaction screens referenced herein, has no
actual knowledge and has received no notice of any material and adverse
environmental condition or circumstance affecting such Mortgaged Property
that was not disclosed in such report(s). If any such environmental report
identified any Recognized Environmental Condition (REC), as that term is
defined in the Standard Practice for Environmental Site Assessments: Phase
I
I-6
Environmental Site Assessment Process Designation: E 1527-00, as
recommended by the American Society for Testing and Materials (ASTM), with
respect to the related Mortgaged Property and the same have not been
subsequently addressed in all material respects, then one or more of the
following is true: (i) an escrow greater than 100% of the amount identified
as necessary by the environmental consulting firm to address the REC is
held by the Seller for purposes of effecting same (and the related
Mortgagor has covenanted in the Mortgage Loan documents to perform such
work); (ii) the related Mortgagor or other responsible party having
financial resources reasonably estimated to be adequate to address the REC
is required to take such actions or is liable for the failure to take such
actions, if any, with respect to such circumstances or conditions as have
been required by the applicable governmental regulatory authority or any
environmental law or regulation; (iii) the related Mortgagor has provided a
lender's environmental insurance policy (in which case such Mortgage Loan
is identified on Annex A to this Schedule I); (iv) an operations and
maintenance plan has been or will be implemented; (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation; or (vi) the Mortgagor or other responsible
party has obtained a no further action letter or other evidence that
governmental authorities have no intention of taking any action or
requiring any action in respect of the REC. All environmental assessments
or updates that were in the possession of the Seller and that relate to a
Mortgaged Property insured by an environmental insurance policy have been
delivered to or disclosed to the environmental insurance carrier issuing
such policy prior to the issuance of such policy.
20. Each related Mortgage and Assignment of Leases, together with
applicable state law, contains customary and enforceable provisions for
comparable mortgaged properties similarly situated such as to render the
rights and remedies of the holder thereof adequate for the practical
realization against the Mortgaged Property of the principal benefits of the
security, including realization by judicial or, if applicable, non-judicial
foreclosure, subject to the effects of bankruptcy, insolvency,
reorganization, receivership, moratorium, redemption, liquidation or
similar laws affecting the rights of creditors and the application of
principles of equity.
21. At the time of origination and, to the actual knowledge of Seller
as of the Cut-off Date, no Mortgagor is a debtor in any state or federal
bankruptcy or insolvency proceeding.
22. Except with respect to any Mortgage Loan that is part of a Loan
Combination, each Mortgage Loan is a whole loan and contains no equity
participation by the Seller or shared appreciation feature and does not
provide for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property or, other
than the ARD Loans, provide for negative amortization. The Seller holds no
preferred equity interest in the related Mortgagor.
23. Subject to certain exceptions, which are customarily acceptable to
prudent commercial and multifamily mortgage lending institutions lending on
the security of property comparable to the related Mortgaged Property, each
related Mortgage or loan
I-7
agreement contains provisions for the acceleration of the payment of the
unpaid principal balance of such Mortgage Loan if, without complying with
the requirements of the Mortgage or loan agreement, (a) the related
Mortgaged Property, or any controlling interest in the related Mortgagor,
is directly transferred or sold (other than by reason of family and estate
planning transfers, transfers by devise, descent or operation of law upon
the death or incapacity of a member, general partner or shareholder of the
related Mortgagor, transfers of less than a controlling interest in a
mortgagor, issuance of non-controlling new equity interests, transfers
among existing members, partners or shareholders in the Mortgagor or an
affiliate thereof, transfers among affiliated Mortgagors with respect to
cross-collateralized and cross-defaulted Mortgage Loans or multi-property
Mortgage Loans or transfers of a similar nature to the foregoing meeting
the requirements of the Mortgage Loan, such as pledges of ownership
interest that do not result in a change of control) or a substitution or
release of collateral is effected other than in the circumstances specified
in representation (26) below, or (b) the related Mortgaged Property is
encumbered in connection with subordinate financing by a lien or security
interest against the related Mortgaged Property, other than any existing
permitted additional debt.
24. Except as set forth in the related Mortgage File, the terms of the
related Mortgage Note and Mortgage(s) have not been waived, modified,
altered, satisfied, impaired, canceled, subordinated or rescinded in any
manner which materially interferes with the security intended to be
provided by such Mortgage.
25. Each related Mortgaged Property was inspected by or on behalf of
the related originator or an affiliate during the 12-month period prior to
the related origination date.
26. Since origination, no material portion of the related Mortgaged
Property has been released from the lien of the related Mortgage in any
manner which materially and adversely affects the value of the Mortgage
Loan or materially interferes with the security intended to be provided by
such Mortgage, and, except with respect to Mortgage Loans (a) which permit
defeasance by means of substituting for the Mortgaged Property (or, in the
case of a Mortgage Loan secured by multiple Mortgaged Properties, one or
more of such Mortgaged Properties) "government securities" within the
meaning of Treasury Regulation Section 1.860G-2(a)(8)(i) sufficient to pay
the Mortgage Loans (or portions thereof) in accordance with their terms,
(b) where a release of the portion of the Mortgaged Property was
contemplated at origination and such portion was not considered material
for purposes of underwriting the Mortgage Loan, (c) where release is
conditional upon the satisfaction of certain underwriting and legal
requirements and the payment of a release price that represents adequate
consideration for such Mortgaged Property or the portion thereof that is
being released, (d) which permit the related Mortgagor to substitute a
replacement property in compliance with REMIC Provisions or (e) which
permit the release(s) of unimproved out-parcels or other portions of the
Mortgaged Property that will not have a material adverse affect on the
underwritten value of the security for the Mortgage Loan or that were not
allocated any value in the underwriting during the origination of the
Mortgage Loan, the terms of the related Mortgage do not provide for
I-8
release of any portion of the Mortgaged Property from the lien of the
Mortgage except in consideration of payment in full therefor.
27. To the Seller's actual knowledge, based upon a letter from
governmental authorities, a legal opinion, an endorsement to the related
title policy, an architect's letter or zoning consultant's report or based
upon other due diligence considered reasonable by prudent commercial and
multifamily mortgage lending institutions in the area where the applicable
Mortgaged Property is located, as of the date of origination of such
Mortgage Loan and as of the Cut-off Date, there are no material violations
of any applicable zoning ordinances, building codes and land laws
applicable to the Mortgaged Property or the use and occupancy thereof which
(a) are not insured by an ALTA lender's title insurance policy (or a
binding commitment therefor), or its equivalent as adopted in the
applicable jurisdiction, or a law and ordinance insurance policy or (b)
would have a material adverse effect on the value, operation or net
operating income of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title
policy referred to herein obtained in connection with the origination of
each Mortgage Loan, none of the material improvements which were included
for the purposes of determining the appraised value of the related
Mortgaged Property at the time of the origination of the Mortgage Loan lies
outside of the boundaries and building restriction lines of such property
(except Mortgaged Properties which are legal non-conforming uses), to an
extent which would have a material adverse affect on the value of the
Mortgaged Property or related Mortgagor's use and operation of such
Mortgaged Property (unless affirmatively covered by title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged
Property to an extent which would have a material adverse affect on the
value of the Mortgaged Property or related Mortgagor's use and operation of
such Mortgaged Property (unless affirmatively covered by title insurance).
29. With respect to at least 95% of the Mortgage Loans (by principal
balance) having a Cut-off Date Balance in excess of 1% of the Initial Pool
Balance, the related Mortgagor has covenanted in its organizational
documents and/or the Mortgage Loan documents to own no significant asset
other than the related Mortgaged Property or Mortgaged Properties, as
applicable, and assets incidental to its ownership and operation of such
Mortgaged Property, and to hold itself out as being a legal entity,
separate and apart from any other Person.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the Mortgage
Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual
knowledge, as of the Cut-off Date, there was no pending action, suit or
proceeding, or governmental investigation of which it has received notice,
against the Mortgagor or the related Mortgaged Property the adverse outcome
of which could reasonably be expected to materially and adversely affect
such Mortgagor's ability to pay principal, interest or any
I-9
other amounts due under such Mortgage Loan or the security intended to be
provided by the Mortgage Loan documents or the current use of the Mortgaged
Property.
32. As of the date of origination, and, to the Seller's actual
knowledge, as of the Cut-off Date, if the related Mortgage is a deed of
trust, a trustee, duly qualified under applicable law to serve as such, has
either been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. Except with respect to any Mortgage Loan that is part of a Loan
Combination, the related Mortgage Note is not secured by any collateral
that secures a mortgage loan that is not in the Trust Fund. and each
Mortgage Loan that is cross-collateralized is cross-collateralized only
with other Mortgage Loans sold pursuant to this Agreement.
34. The improvements located on the Mortgaged Property are either not
located in a federally designated special flood hazard area or the
Mortgagor is required to maintain or the mortgagee maintains, flood
insurance with respect to such improvements and such insurance policy is in
full force and effect and in an amount (subject to a deductible not to
exceed $25,000) at least equal to the least of (a) the replacement cost of
improvements located on such mortgaged real property, (b) the outstanding
principal balance of the subject mortgage loan and (c) the maximum amount
under the applicable federal flood insurance program.
35. All escrow deposits and payments required pursuant to the Mortgage
Loan as of the Closing Date required to be deposited with the Seller in
accordance with the Mortgage Loan documents have been so deposited, and to
the extent not disbursed or otherwise released in accordance with the
related Mortgage Loan documents, are in the possession, or under the
control, of the Seller or its agent and there are no deficiencies in
connection therewith.
36. To the Seller's actual knowledge, based on the due diligence
customarily performed in the origination of comparable mortgage loans by
prudent commercial and multifamily mortgage lending institutions with
respect to the related geographic area and properties comparable to the
related Mortgaged Property, as of the date of origination of the Mortgage
Loan, the related Mortgagor was in possession of all material licenses,
permits and authorizations then required for use of the related Mortgaged
Property, and, as of the Cut-off Date, the Seller has no actual knowledge
that the related Mortgagor was not in possession of such licenses, permits
and authorizations.
37. The origination (or acquisition, as the case may be) practices
used by the Seller or its affiliates with respect to the Mortgage Loan have
been in all material respects legal and the servicing and collection
practices used by the Seller or its affiliates with respect to the Mortgage
Loan have met customary industry standards for servicing of commercial
mortgage loans for conduit loan programs.
I-10
38. Except for any Mortgage Loan secured by a Mortgagor's leasehold
interest in the related Mortgaged Property, the related Mortgagor (or its
affiliate) has title in the fee simple interest in each related Mortgaged
Property.
39. The Mortgage Loan documents for each Mortgage Loan provide that
each Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor accepts responsibility for fraud and/or other intentional
material misrepresentation. The Mortgage Loan documents for each Mortgage
Loan provide that the related Mortgagor shall be liable to the lender for
losses incurred due to the misapplication or misappropriation of rents
collected in advance or received by the related Mortgagor after the
occurrence of an event of default and not paid to the Mortgagee or applied
to the Mortgaged Property in the ordinary course of business,
misapplication or conversion by the Mortgagor of insurance proceeds or
condemnation awards or breach of the environmental covenants in the related
Mortgage Loan documents.
40. Subject to the exceptions set forth in representation (5), the
Assignment of Leases set forth in the Mortgage or separate from the related
Mortgage and related to and delivered in connection with each Mortgage Loan
establishes and creates a valid, subsisting and enforceable lien and
security interest in the related Mortgagor's interest in all leases,
subleases, licenses or other agreements pursuant to which any Person is
entitled to occupy, use or possess all or any portion of the real property.
41. With respect to such Mortgage Loan, any prepayment premium
constitutes a "customary prepayment penalty" within the meaning of Treasury
Regulations Section 1.860G-1(b)(2).
42. If such Mortgage Loan contains a provision for any defeasance of
mortgage collateral, such Mortgage Loan permits defeasance (a) no earlier
than two (2) years after the Closing Date, and (b) only with substitute
collateral constituting "government securities" within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to
make all scheduled payments under the Mortgage Note. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including rating agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (i) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (ii) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (iii) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such
I-11
requirements are effectively present in such documents due to the general
obligation to comply with the REMIC Provisions and/or deliver a REMIC
Opinion of Counsel.
43. To the extent required under applicable law as of the date of
origination, and necessary for the enforceability or collectability of the
Mortgage Loan, the originator of such Mortgage Loan was authorized to do
business in the jurisdiction in which the related Mortgaged Property is
located at all times when it originated and held the Mortgage Loan.
44. Neither the Seller nor any affiliate thereof has any obligation to
make any capital contributions to the Mortgagor under the Mortgage Loan.
45. Except with respect to any Mortgage Loan that is part of a Loan
Combination, none of the Mortgaged Properties are encumbered, and none of
the Mortgage Loan documents permit the related Mortgaged Property to be
encumbered subsequent to the Closing Date without the prior written consent
of the holder thereof, by any lien securing the payment of money junior to
or of equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmen's liens that become payable after the Cut-off Date of the
related Mortgage Loan).
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ANNEX A (TO SCHEDULE I)
Mortgage Loans as to Which the Related Mortgagor Obtained
a Lender's Environmental Insurance Policy
Loan Number Mortgage Loan Seller Property Name
----------- -------------------- -----------------
111 PNC BANK WHITE BIRCH PLAZA
I-13
SCHEDULE II
GROUND LEASE REPRESENTATIONS AND WARRANTIES
With respect to each Mortgage Loan secured by a leasehold interest
(except with respect to any Mortgage Loan also secured by a fee interest in the
related Mortgaged Property), the Seller represents and warrants the following
with respect to the related Ground Lease:
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded no later than thirty (30) days after the Closing Date and such
Ground Lease permits the interest of the lessee thereunder to be encumbered
by the related Mortgage or, if consent of the lessor thereunder is
required, it has been obtained prior to the Closing Date.
2. Upon the foreclosure of the Mortgage Loan (or acceptance of a deed
in lieu thereof), the Mortgagor's interest in such ground lease is
assignable to the mortgagee under the leasehold estate and its assigns
without the consent of the lessor thereunder (or, if any such consent is
required, it has been obtained prior to the Closing Date).
3. Such Ground Lease may not be amended, modified, canceled or
terminated without the prior written consent of the mortgagee and any such
action without such consent is not binding on the mortgagee, its successors
or assigns, except termination or cancellation if (a) an event of default
occurs under the Ground Lease, (b) notice thereof is provided to the
mortgagee and (c) such default is curable by the mortgagee as provided in
the Ground Lease but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Seller, at the Closing Date, such
Ground Lease is in full force and effect and other than payments due but
not yet thirty (30) days or more delinquent, (a) there is no material
default, and (b) there is no event which, with the passage of time or with
notice and the expiration of any grace or cure period, would constitute a
material default under such Ground Lease.
5. The Ground Lease or ancillary agreement between the lessor and the
lessee requires the lessor to give notice of any default by the lessee to
the mortgagee. The ground lease or ancillary agreement further provides
that no notice of default given is effective against the mortgagee unless a
copy has been given to the mortgagee in a manner described in the ground
lease or ancillary agreement.
6. The ground lease (a) is not subject to any liens or encumbrances
superior to, or of equal priority with, the Mortgage, subject, however, to
only the Title Exceptions or (b) is subject to a subordination,
non-disturbance and attornment agreement to which the mortgagee on the
lessor's fee interest in the Mortgaged Property is subject.
7. A mortgagee is permitted a reasonable opportunity (including, where
necessary, sufficient time to gain possession of the interest of the lessee
under the ground
II-1
lease) to cure any curable default under such Ground Lease before the
lessor thereunder may terminate such Ground Lease.
8. Such Ground Lease has an original term (together with any extension
options, whether or not currently exercised, set forth therein all of which
can be exercised by the mortgagee if the mortgagee acquires the lessee's
rights under the Ground Lease) that extends not less than twenty (20) years
beyond the Stated Maturity Date.
9. Under the terms of such Ground Lease, any estoppel or consent
letter received by the mortgagee from the lessor, and the related Mortgage,
taken together, any related insurance proceeds or condemnation award (other
than in respect of a total or substantially total loss or taking) will be
applied either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed or approved
by it having the right to hold and disburse such proceeds as repair or
restoration progresses (except in cases where a provision entitling another
party to hold and disburse such proceeds would not be viewed as
commercially unreasonable by a prudent commercial and multifamily mortgage
lending institution), or to the payment or defeasance of the outstanding
principal balance of the Mortgage Loan, together with any accrued interest
(except in cases where a different allocation would not be viewed as
commercially unreasonable by a prudent commercial and multifamily mortgage
lending institution, taking into account the relative duration of the
ground lease and the related Mortgage and the ratio of the market value of
the related Mortgaged Property to the outstanding principal balance of such
Mortgage Loan).
10. The ground lease does not impose any restrictions on subletting
that would be viewed as commercially unreasonable by a prudent commercial
and multifamily mortgage lending institution.
11. The ground lessor under such Ground Lease is required to enter
into a new lease upon termination of the Ground Lease for any reason,
including the rejection of the Ground Lease in bankruptcy.
II-2
SCHEDULE III
EXCEPTIONS TO GENERAL MORTGAGE REPRESENTATIONS AND WARRANTIES (SET FORTH IN
SCHEDULE I)
EXCEPTIONS TO REPRESENTATION 16
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 forebear 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:
940952701 0000 Xxxxxxx Xxxxx
940952924 A+ Mini Storage
940952968 Canyon Corporate Center
940952929 CIGNA Regional Building
940952590 Heart Center Medical Group Building
940952590 The EPL Building
940952901 USPS Processing Center
940952923 Wakefield Companies - Danvers
940952942 Wakefield Companies - Peabody
EXCEPTIONS TO REPRESENTATION 22
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 forebear 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:
940952701 0000 Xxxxxxx Xxxxx
940952924 A+ Mini Storage
940952968 Canyon Corporate Center
940952929 CIGNA Regional Building
940952590 Heart Center Medical Group Building
940952590 The EPL Building
940952901 USPS Processing Center
940952923 Wakefield Companies - Danvers
940952942 Wakefield Companies - Peabody
III-1
ANNEX A
MORTGAGE LOAN SCHEDULE
A-1
MORTGAGE LOAN
LOAN LOAN GROUP
NUMBER SELLER NUMBER LOAN / PROPERTY NAME PROPERTY ADDRESS CITY STATE
--------------------------------------------------------------------------------------------------------------------------------
7 PNC 1 Four Points Sheraton 0000 X Xxxxxx X.X. Xxxxxxxxxx XX
16 PNC 1 Canyon Corporate Center 0000 Xxxx Xx Xxxxx Xxxxxx Xxxxxxx XX
Wakefield Companies - Danvers and Peabody
21 PNC 1 Wakefield Companies - Danvers 000-000 Xxxxx Xxxxxx Xxxxxxx XX
22 PNC 1 Wakefield Companies - Peabody 0 Xxxxx Xxxxxx Xxxxxxx XX
27 PNC 1 Heart Center Medical Group Building 0000 Xxxx Xxxxxxxxx Xxxxxxxxx Xxxx Xxxxx XX
30 PNC 0 Xxxxxxxxxx Xxxxxx 000-000 Xxxx Xxxxxx Xxxxxx Xxxxx Xxxxxxx XX
Courtyard Atlanta Roswell and Columbia Xxxxxxxxx
00 XXX 0 Xxxxxxxxx Xxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxx Xxxxxxxx XX
32 PNC 0 Xxxxxxxxx Xxxxxxx Xxxxxxx 0000 Xxxxxx Xxxxxxxxx Xxxxxxx XX
35 PNC 2 Forest Cove Apartment Homes 0000 Xxxxxxxxx Xxxx Xxxxxxxx XX
41 PNC 1 Xxxxxx Executive Village Hotel 00000 Xxxxxxx Xxxx Xxxxxxxx Xxxx XX
46 PNC 1 CIGNA Regional Building 1 Cigna Drive Bourbonnais IL
52 PNC 2 Woodland Hills Village Apartment Homes 0000 Xxxx Xxxxx Xxxxx Xxxxxx XX
54 PNC 1 Xxx Xxxxxx Xxxxx 0000 Xxxxx Xxxxx Xxxxxx Xxxxx XX
00 XXX 0 Xxxx Xxxxxxx Medical Arts II 0000 Xxxxxx Xxxxxxxxx Xxxxxxx Xxxx XX
65 PNC 1 Nationwide Building 0000 Xxxxxxxxxx Xxxxx Xxx Xxxxxxx XX
81 PNC 1 Xxxxxxxxxx Xxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxx XX
104 PNC 0 Xxxxxx Xxxxx Senior Apartments 00000 Xxxxxxxx Xxxxx Xxxxxxx XX
106 PNC 1 Pecos Retail Center 0000 Xxxxx Xxxxxx Xxxxxx XX
108 PNC 1 The Inn at Tallgrass 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx XX
111 PNC 1 Xxxxx Xxxxx Xxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxxxxx XX
123 PNC 2 South Point Apartment Homes 0000 Xxxxx Xxxxxxxx Xxxxx XxXxxx XX
124 PNC 1 0000 Xxxxxxx Xxxxx 0000 Xxxxxxx Xxxxx Xxxxx XX
132 PNC 1 The EPL Building 00000 Xxxxxxxx Xxxxx Xxxxxxxx XX
135 PNC 1 USPS Processing Center 0000 Xxxxxxx Xxx Xxxxxx XX
142 PNC 1 Landover Metro Industrial 0000-0000 Xxxxxx Xxxxx Xxxxxxxx XX
146 PNC 2 Killeen Stone Ranch Apartments 0000 Xxxx Xxxxxxx Xxxx Xxxxxxx XX
160 PNC 1 Xxxxxx Station Professional Xxxx 0000 Xxxxxx Xxxxxxx Xxxx Xxxxxx XX
164 PNC 1 Ashlan & West ("Wishing Well Plaza") 0000-0000 Xxxx Xxxxxx Xxxxxx Xxxxxx XX
175 PNC 1 A+ Mini Storage (A3-Norman) 0000 Xxxx Xxxx Xxxxxx XX
191 PNC 1 0000 Xxxx Xxxx Xx Xxx Xxxxxx 0000 Xxxx Xxxx Xx Xxx Xxxxxx Xxxxxxxxx XX
206 PNC 1 Liberty Town Center Shopping Center 0000-0000 Xxxxx Xxxxxx Xxxx Xxxxxx Xxxx XX
MASTER ADDITIONAL
LOAN ZIP CUT-OFF DATE CROSS COLLATERALIZED MORTGAGE SERVICING ARD LOAN INTEREST RATE
NUMBER CODE COUNTY PRINCIPAL BALANCE (MORTGAGE LOAN GROUP) RATE FEE RATE (YES/NO)? ARD AFTER ARD
----------------------------------------------------------------------------------------------------------------------------------
7 20005 District of Columbia 48,200,000.00 No 6.2000% 0.0500% Xx
00 00000 Xxxxxx 24,600,000.00 No 6.1200% 0.0800% No
21 01923 Essex 11,500,000.00 Yes (C1) 6.4400% 0.0600% No
22 01960 Essex 10,700,000.00 Yes (C1) 6.4400% 0.0600% No
27 46804 Xxxxx 17,040,000.00 No 5.8200% 0.0600% No
30 16801 Centre 15,510,846.39 No 5.6300% 0.0300% Xx
00 00000 Xxxxxxxxx 8,000,000.00 Yes (C2) 6.2800% 0.0300% No
32 30076 Xxxxxx 7,500,000.00 Yes (C2) 6.2800% 0.0300% No
35 77586 Xxxxxx 14,750,000.00 No 6.1200% 0.0400% No
41 66210 Xxxxxxx 12,966,830.76 No 6.3800% 0.0800% Xx
00 00000 Xxxxxxxx 12,000,000 (Note 4) No 6.1100% 0.0500% No
52 77339 Xxxxxx 10,520,000.00 No 6.1300% 0.0500% Xx
00 00000 Xxxxx 10,200,000.00 No 6.1800% 0.0800% No
61 23606 Newport News 9,200,000.00 No 5.9100% 0.0300% Xx
00 00000 Xxxxx County 8,489,172.27 No 6.0100% 0.0800% No
81 16510 Erie 6,688,228.86 No 6.1800% 0.0300% No
104 77082 Xxxxxx 5,155,462.26 No 7.4500% 0.0300% No
106 80221 Xxxxx 5,000,000.00 No 6.2500% 0.0600% No
108 67226 Sedgwick 4,994,482.41 No 6.7200% 0.0800% No
111 03801 Rockingham 4,880,000.00 No 6.1200% 0.0600% Xx
000 00000 Xxxxxx 4,275,000.00 No 6.2200% 0.0500% Xx
000 00000 Xxx Xxxxx 4,196,528.04 No 6.0100% 0.0800% No
132 20166 Loudoun 3,893,085.87 No 6.1400% 0.0600% No
135 78710 Xxxxxx 3,800,000.00 No 6.3100% 0.0600% Xx
000 00000 Xxxxxx Xxxxxxx 3,600,000.00 No 5.8900% 0.0500% No
146 76543 Xxxx 3,325,658.86 No 7.4300% 0.0300% Xx
000 00000 Xx. Xxxxx 2,847,897.35 No 6.4300% 0.0800% No
164 93705 Fresno 2,560,000.00 No 6.3900% 0.0600% No
175 73072 Cleveland 2,000,000.00 No 6.3300% 0.0800% No
191 53218 Milwaukee 1,446,000.00 No 6.3900% 0.0700% No
206 64157 Clay 999,249.85 No 6.3700% 0.0600% No
INTEREST PERIODIC ORIGINAL REMAINING STATED STATED
RESERVE PAYMENT ON TERM TO TERM TO ORIGINAL REMAINING
MORTGAGE STATED FIRST DUE MATURITY / MATURITY / AMORTIZATION AMORTIZATION
LOAN LOAN GRACE PERIOD MATURITY DATE AFTER ARD ARD TERM TERM
NUMBER (YES/NO)? LOAN TYPE (DAYS) DATE CLOSING (MONTHS) (MONTHS) (MONTHS) (MONTHS)
-------------------------------------------------------------------------------------------------------------------------------
7 Yes Interest Only 5 10/01/11 249,033.33 60 59 Interest Only Interest Only
16 Yes Partial IO/Balloon 5 10/01/16 125,460.00 120 119 360 360
21 Yes Partial IO/Balloon 5 09/01/16 61,716.67 120 118 360 360
22 Yes Partial IO/Balloon 5 09/01/16 57,423.33 120 118 360 360
27 Yes Partial IO/Balloon 5 11/01/16 82,644.00 120 120 360 360
30 Yes Balloon 5 10/01/16 89,419.67 120 119 360 359
31 Yes Partial IO/Balloon 5 10/01/11 41,866.67 60 59 360 360
32 Yes Partial IO/Balloon 5 10/01/11 39,250.00 60 59 360 360
35 Yes Partial IO/Balloon 5 10/01/16 75,225.00 120 119 360 360
41 Yes Balloon 5 09/01/16 86,804.64 120 118 300 298
46 Yes Partial IO/Balloon 5 11/01/16 61,100.00 120 120 168 (Note 4) 168
52 Yes Partial IO/Balloon 5 09/01/16 53,739.67 120 118 360 360
54 Yes Partial IO/Balloon 5 08/01/16 52,530.00 120 117 360 360
61 Yes Balloon 0 11/01/16 54,627.44 120 120 360 360
65 Yes Balloon 5 10/01/16 54,817.59 120 119 300 299
81 Yes Balloon 5 09/01/16 40,948.51 120 118 360 358
104 Yes Balloon 5 08/01/21 35,937.76 180 177 360 357
106 Yes Partial IO/Balloon 5 11/01/16 26,041.67 120 120 360 360
108 Yes Balloon 5 10/01/16 34,450.92 120 119 300 299
111 Yes Partial IO/Balloon 5 10/01/16 24,888.00 120 119 360 360
123 Yes Partial IO/Balloon 5 09/01/16 22,158.75 120 118 360 360
124 Yes Balloon 5 10/01/16 25,208.13 120 119 360 359
132 Yes Balloon 5 09/01/16 23,734.65 120 118 360 358
135 Yes Balloon 5 11/01/16 23,545.74 120 120 360 360
142 Yes Partial IO/Balloon 5 11/01/16 17,670.00 120 120 360 360
146 Yes Balloon 5 09/01/21 23,124.44 180 178 360 358
160 Yes Balloon 5 10/01/16 17,882.94 120 119 360 359
164 Yes Partial IO/Balloon 5 09/01/16 13,632.00 120 118 360 360
175 Yes Balloon 5 10/01/16 12,418.59 120 120 360 360
191 Yes Partial IO/Balloon 5 10/01/16 7,699.95 120 119 360 360
206 Yes Balloon 5 10/01/16 6,235.43 120 119 360 359
ESCROWED
ANNUAL
DEFEASANCE REAL ESCROWED ESCROWED REPLACE-
LOAN LOAN PROPERTY LOCKBOX ESTATE ANNUAL MENT RESERVES
NUMBER (YES/NO)? BORROWER'S INTEREST PROPERTY SIZE SIZE TYPE (YES/NO)? TAXES INSURANCE INITIAL DEPOSIT
-----------------------------------------------------------------------------------------------------------------------------------
7 Yes Fee Simple 265 Rooms None Yes Yes 0
16 Yes Fee Simple 156,135 SF In-Place Hard Yes Yes 0
21 No Fee Simple 167,245 SF None Yes Yes 0
22 No Fee Simple 152,686 SF None Yes Yes 0
27 Yes Fee Simple 78,745 SF In-Place Hard No No 0
30 Yes Fee in Part, Leasehold in Part 74 Units None Yes Yes 0
31 Yes Fee Simple 149 Rooms None No Yes 1,777,247
32 Yes Leasehold 154 Rooms None No Yes 1,678,467
35 No Fee Simple 276 Units None Yes Yes 0
41 Yes Fee Simple 214 Rooms None Yes Yes 0
46 Yes Fee Simple 152,287 SF None No No 0
52 No Fee Simple 260 Units None Yes Yes 0
54 Yes Fee Simple 118,879 SF Soft Yes Yes 0
61 Yes Fee Simple 54,735 SF None Yes No 0
65 Yes Fee Simple 93,299 SF In-Place Hard Yes Yes 0
81 Yes Fee Xxxxxx 00 Xxxxx Xxxx Yes Yes 357,185
104 Yes Fee Simple 148 Units None Yes Yes 0
106 No Fee Simple 71,779 SF Springing Yes Yes 0
108 No Fee Simple 88 Rooms None Yes Yes 0
111 Yes Fee Simple 39,092 SF None Yes Yes 0
123 No Fee Simple 128 Units None Yes Yes 0
124 Yes Fee Simple 41,821 SF In-Place Hard Yes Yes 0
132 Yes Fee Simple 27,509 SF In-Place Hard Yes Yes 1,425,000
135 No Fee Simple 75,600 SF In-Place Hard Yes No 7,560
142 No Fee Simple 64,792 SF None Yes Yes 0
146 Yes Fee Simple 152 Units None Yes Yes 0
160 Yes Fee Simple 15,416 SF None Yes Yes 0
164 Yes Fee Simple 21,700 SF None Yes Yes 12,954
175 Yes Fee Simple 421 Units None Yes Yes 0
191 No Fee Simple 15,000 SF Springing Hard Yes Yes 0
206 Yes Fee Simple 6,000 SF None Yes Yes 0
ESCROWED TI/LC
LOAN RESERVES INITIAL
NUMBER ESCROWED REPLACEMENT RESERVES CURRENT ANNUAL DEPOSIT DEPOSIT
------------------------------------------------------------------------------------------------------------------------
7 551,270 NAP
16 33,030 2,000,000
21 0 0
22 0 0
27 0 0
30 24,272 NAP
31 134,501.64 for the first month, 4% annual gross revenues thereafter. NAP
32 139,418.64 for the first month, 4% of annual gross revenues thereafter. NAP
35 69,000 NAP
41 196,604 NAP
46 0 0
52 66,040 NAP
54 23,776 193,260
61 10,947 400,000
65 18,660 1,500,000
81 17,700 NAP
104 36,994 NAP
106 10,985 0
108 4.00% of gross revenues generated for the 12 month period ending on Sep. 30 of preceding year. NAP
111 6,255 0
123 32,000 NAP
124 13,076 0
132 5,502 0
135 0 0
142 8,334 512,000
146 37,994 NAP
160 3,083 80,000
164 4,318 35,000
175 8,389 NAP
191 2,400 0
206 900 0
LOAN INITIAL DEFERRED
NUMBER ESCROWED TI/LC RESERVES CURRENT ANNUAL DEPOSIT MAINTENANCE DEPOSIT
--------------------------------------------------------------------------------------------------------------------------------
7 NAP 0
16 200,000 0
21 0 0
22 0 5,542,800
27 0 0
30 NAP 0
31 NAP 0
32 NAP 0
35 NAP 150,000
41 NAP 0
46 0 0
52 NAP 150,000
54 96,000 0
61 0 0
65 250,000 0
81 NAP 0
104 NAP 0
106 39,996 0
108 NAP 0
111 40,000 0
123 NAP 100,000
124 36,000 0
132 No escrow account until the net worth of Experimental Pathologies Laboratories is below $3,400,000.
If the value drops below $3.4 million, the borrower will deposit $3,000 monthly into an escrow
account held by PNC. 0
135 0 0
142 12,000 0
146 NAP 0
160 0 0
164 35,000 18,246
175 NAP 0
191 12,500 0
206 7,500 19,688
INITIAL
LOAN ENVIRONMENTAL HOLDBACK
NUMBER DEPOSIT RESERVE LOC ENVIRONMENTAL INSURANCE POLICY
-------------------------------------------------------------------------------------------------------
7 0
16 0
21 12,125
22 12,125
27 0
30 0
31 0
32 0
35 0
41 0
46 0
52 1,000
54 0
61 0
65 0
81 0
104 0
106 0
108 0
111 0 Yes, Secured lender's policy in lieu of environmental assessment.
123 0
124 0
132 0
135 0
142 0
146 0
160 0
164 0
175 0
191 0
206 0
FOOTNOTES TO SCHEDULE I
(1) With respect to loan number 46, the Monthly Debt Service Payment shown is
due from the First Payment Date up to and including the payment due date in
October 2010. Commencing on the payment due date in November 2010, a
payment of interest only will be in effect up to and including the
Scheduled Maturity Date/ARD.
