MORTGAGE LOAN PURCHASE AGREEMENT
Mortgage Loan Purchase Agreement, dated as of May 1, 1999 (the
"Agreement"), between The Chase Manhattan Bank (the "Seller") and First Union
Commercial Mortgage Securities, Inc. (the "Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "CMB Mortgage Loans")
as provided herein. The Purchaser intends to deposit the CMB Mortgage Loans,
together with the Other Mortgage Loans (as defined below), 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 the Trust Fund. The Trust
Fund will be created and the Certificates will be issued pursuant to a Pooling
and Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of
the Cut-Off Date, among the Purchaser as depositor, First Union National Bank
as master servicer (in such capacity, the "Master Servicer"), Banc One
Mortgage Capital Markets, LLC, as special servicer (in such capacity, the
"Special Servicer"), and Norwest Bank Minnesota, National Association as
trustee (the "Trustee"). Concurrently with the purchase of the CMB Mortgage
Loans pursuant to this Agreement, the Purchaser will also purchase certain
multifamily and commercial mortgage loans (the "Other Mortgage Loans", and
collectively with the CMB Mortgage Loans, the "Mortgage Loans") pursuant to a
separate mortgage loan purchase agreement, dated as of May 1, 1999, between
the purchaser and First Union National Bank. The Other Mortgage Loans will
likewise be deposited into the Trust Fund. Capitalized terms used but not
defined herein have the respective meanings set forth in the Pooling and
Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
(a) The Seller agrees to sell, and the Purchaser agrees to purchase,
the CMB Mortgage Loans identified on the schedule (the "Mortgage Loan
Schedule") annexed hereto as Exhibit A. The Mortgage Loan Schedule may be
amended to reflect the actual CMB Mortgage Loans delivered to the Purchaser
pursuant to the terms hereof. The CMB Mortgage Loans are expected to have an
aggregate principal balance of $530,134,859.35 (the "CMB Balance") (subject to
a variance of plus or minus 5.0%) as of the close of business on the Cut-Off
Date, after giving effect to any payments due on or before such date whether
or not received. The CMB 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 received), is
expected to equal an aggregate principal balance (the "Initial Pool Balance")
of $1,181,484,821 (subject to a variance of plus or minus 5%). The purchase
and sale of the CMB Mortgage Loans shall take place on May 24, 1999 or such
other date as shall be mutually acceptable to the parties hereto (the "Closing
Date"). The consideration (the "Aggregate Purchase Price") for the CMB
Mortgage Loans shall consist of a cash amount equal to the sum of (i)
100.7991384% of the CMB Balance as of the Cut-Off Date, plus (ii) interest
accrued on the CMB Balance at the related Net Mortgage Rate for the period
from and including the Cut-Off Date up to but not including the Closing Date
in the amount of $1,432,559.32, less fees and expenses payable by the Seller.
The Aggregate Purchase Price shall be paid to the Seller or its designee by
wire transfer in immediately available funds on the Closing Date.
The Purchaser will assign to the Trustee, all of its right, title and
interest in and to the CMB Mortgage Loans.
SECTION 2. Conveyance of CMB Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof, 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 CMB Mortgage Loans identified on the
Mortgage Loan Schedule as of such date, on a servicing released basis,
together with all of the Seller's right, title and interest in and to the
proceeds of any related title, hazard, primary mortgage or other insurance
proceeds. The Mortgage Loan Schedule, as it may be amended, shall conform to
the requirements set forth in this Agreement and the Pooling and Servicing
Agreement.
(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 CMB 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 CMB Mortgage
Loans due on or before the Cut-Off Date and principal prepayments thereon),
shall belong to, and be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has, on behalf
of the Purchaser, delivered to the Trustee, the documents and instruments
specified below with respect to each CMB Mortgage Loan (each a "Mortgage
File"). All Mortgage Files so delivered will be held by the Trustee in escrow
at all times prior to the Closing Date. Each Mortgage File shall contain the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof (or a lost note
affidavit and indemnity with a copy of such Mortgage Note
attached thereto) together with any intervening endorsements
thereon, endorsed on its face or by allonge attached thereto
(without recourse, representation or warranty, express or
implied) to the order of NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee for the registered holders of First
Union National Bank - Chase Manhattan Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2 or in blank;
(ii) an original or copy of the Mortgage, together with any and
all intervening assignments thereof, in each case with
evidence of recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each
case with evidence of recording indicated thereon;
(iv) an original executed assignment, in recordable form, 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 CMB Mortgage Loan
otherwise included in the Mortgage File, in favor of NORWEST
BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee for the
registered holders of First Union National Bank - Chase
Manhattan Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2;
(v) an original assignment of all unrecorded documents relating
to the CMB Mortgage Loan, in favor of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee for the registered holders
of First Union National Bank - Chase Manhattan Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 1999-C2;
(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 Mortgage Loan
has been assumed;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been
issued, an original or copy of an irrevocable, binding
commitment to issue such title insurance policy;
(viii) any filed copies (with evidence of filing) or other evidence
of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such CMB
Mortgage Loan or in favor of any assignee prior to the
Trustee (but only to the extent the Seller had possession of
such UCC Financing Statements prior to the Closing Date) and,
if there is an effective UCC Financing Statement and
continuation statements in favor of the Seller on record with
the applicable public office for UCC Financing Statements, an
original UCC-2 or UCC-3 assignment, as appropriate, in form
suitable for filing, as appropriate, in favor of NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee for the
registered holders of First Union National Bank - Chase
Manhattan Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 1999-C2; and
(ix) an original or copy of any Ground Lease, any Credit Lease and
any Lease Enhancement Policy, RVI Policy or Guaranty.
(d) Within 30 days following the Closing Date, the Purchaser shall
submit or cause to be submitted for recordation or filing, as the case may be,
in the appropriate public office for real property records or Uniform
Commercial Code financing statements, as appropriate, each assignment of
Mortgage and each assignment of Assignment of Leases referred to in clause
(iv) of subsection (c) above and each UCC-2 and UCC-3 in favor of and
delivered to the Trustee constituting part of the Mortgage File. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, then the Seller shall prepare a
substitute therefor or cure such defect or cause such to be done, as the case
may be, and the Seller shall deliver such substitute or corrected document or
instrument to the Purchaser or its designee.
(e) All documents and records (except attorney-client privileged
communication and internal credit analysis of the Seller) relating to each CMB
Mortgage Loan and in the Seller's possession (the "Additional Mortgage Loan
Documents") that are not required to be delivered to the Trustee shall be
delivered or caused to be delivered by the Seller to the Master Servicer or at
the direction of the Master Servicer to the appropriate sub-servicer, together
with any related escrow amounts and reserve amounts.
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 banking corporation validly existing under
the laws of the State of New York 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, 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 certificate of
incorporation or By-Laws, (B) violate any law or regulation or any
administrative decree or order to which it is subject or (C)
constitute a material default (or an event which, with notice or
lapse of time, or both, would constitute a material default) under,
or result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is
bound.
(iv) The Seller is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state, municipal or other governmental agency or body, which
default might have consequences that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect
the condition (financial or other) or operations of the Seller or its
properties or have consequences that would materially and adversely
affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any certificate of incorporation, bylaws or
any other corporate restriction or any judgment, order, writ,
injunction, decree, law or regulation that would, in the Seller's
reasonable and good faith judgment, materially and adversely affect
the ability of the Seller to perform its obligations under this
Agreement or that requires the consent of any third person to the
execution of this Agreement or the performance by the Seller of its
obligations under this Agreement (except to the extent such consent
has been obtained).
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Seller of or compliance by the Seller
with this Agreement or the consummation of the transactions
contemplated by this Agreement except as have previously been
obtained, and no bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's
good faith and reasonable judgment, prohibit its entering into this
Agreement or materially and adversely affect the performance by the
Seller of its obligations under this Agreement.
(viii) Under generally accepted accounting principles ("GAAP")
and for federal income tax purposes, the Seller will report the
transfer of the CMB Mortgage Loans to the Purchaser as a sale of the
CMB Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
The consideration received by the Seller upon the sale of the CMB
Mortgage Loans to the Purchaser will constitute reasonably equivalent
value at least equal to the fair market value of the CMB Mortgage
Loans. The Seller will be solvent at all relevant times prior to, and
will not be rendered insolvent by, the sale of the CMB Mortgage Loans
to the Purchaser. The Seller is not selling the CMB Mortgage Loans to
the Purchaser with any intent to hinder, delay or defraud any of the
creditors of the Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I and Schedule II hereto for the benefit of the
Purchaser and the Trustee for the benefit of the Certificateholders as of the
Closing Date, with respect to (and solely with respect to) each CMB Mortgage
Loan.
(c) If the Seller receives written notice of a Document Defect or a
Breach pursuant to Section 2.03(a) of the Pooling and Servicing Agreement
relating to a CMB Mortgage Loan, then the Seller shall not later than 90 days
from receipt of such notice (or, in the case of a Document Defect or Breach
relating to a CMB Mortgage Loan not being a "qualified mortgage" within the
meaning of the REMIC Provisions (a "Qualified Mortgage"), not later than 90
days of any party to the Pooling and Servicing Agreement discovering such
Document Defect or Breach), if such Document Defect or Breach shall materially
and adversely affect the value of the related CMB Mortgage Loan or the
interest of the Certificateholders therein, cure such Document Defect or
Breach, as the case may be, in all material respects, which shall include
payment of losses and any Additional Trust Fund Expenses associated therewith
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 CMB 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 CMB
Mortgage Loan not later than the end of such 90-day period (and in no event
later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Certificate Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that if such Document
Defect or Breach is capable of being cured but not within such 90-day period,
such Document Defect or Breach does not relate to the CMB Mortgage Loan not
being treated as a Qualified Mortgage, and the Seller has commenced and is
diligently proceeding with the cure of such Document Defect or Breach within
such 90-day period, such Seller shall have an additional 90 days to complete
such cure (or, failing such cure, to repurchase the related CMB 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 the reason such Document Defect or Breach is not capable of
being cured within the initial 90-day period and 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. For a period of two years from the Closing Date, so
long as there remains any Mortgage File relating to a CMB Mortgage Loan as to
which there is any uncured Document Defect or Breach, the Seller shall provide
the Officer's Certificate to the Trustee described above as to the reasons
such Document Defect or Breach remains uncured and as to the actions being
taken to pursue cure; provided, however, that, without limiting the effect of
the forgoing provisions of this Section 3(c), if such Document Defect or
Breach shall materially and adversely affect the value of such CMB Mortgage
Loan or the interests of the holders of the Certificates therein, the Seller
shall in all cases on or prior to the second anniversary of the Closing Date
either cause such Document Defect or Breach to be cured or repurchase the
affected CMB Mortgage Loan. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance as described in
clause (xii) of Schedule I hereof in lieu of the delivery of the actual policy
of lender's title insurance shall not be considered a Document Defect or
Breach with respect to any Mortgage File if such actual policy of insurance is
delivered to the Trustee or a Custodian on its behalf not later than the 90th
day following the Closing Date.
(d) In connection with any repurchase or substitution of one or more
CMB Mortgage Loans contemplated hereby, upon receipt of a certificate from a
Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account,
and the delivery of the Mortgage File(s) and the Servicing File(s) for the
related Qualified Substitute Mortgage Loan(s) to the Custodian and the Master
Servicer, respectively, if applicable (i) the Trustee shall execute and
deliver such endorsements and assignments as are provided to it by the Master
Servicer, in each case without recourse, representation or warranty, as shall
be necessary to vest in the Seller, the legal and beneficial ownership of each
repurchased CMB Mortgage Loan or substituted CMB Mortgage Loan, as applicable,
and (ii) the Trustee, the Custodian, the Master Servicer and the Special
Servicer shall each tender to the Seller, upon delivery to each of them of a
receipt executed by the Seller, all portions of the Mortgage File and other
documents pertaining to such CMB Mortgage Loan possessed by it.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. Subject to Section 7 of this
Agreement, this Section 3 provides the sole remedy available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of any
representation or warranty set forth in or required to be made pursuant to
Section 2 of this Agreement.
SECTION 4. Representations and Warranties of the Purchaser. In order to induce
the Seller to enter into this Agreement, the Purchaser hereby represents and
warrants for the benefit of the Seller as of the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. The
Purchaser has the full corporate power and authority and legal right to
acquire the CMB Mortgage Loans from the Seller and to transfer the CMB
Mortgage Loans to the Trustee.
(b) This Agreement has been duly and validly authorized, executed and
delivered by the Purchaser, all requisite action by the Purchaser's directors
and officers has been taken in connection therewith, and (assuming the due
authorization, execution and delivery hereof by the Seller) this Agreement
constitutes the valid, legal and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as such
enforcement may be limited by (A) laws relating to bankruptcy, insolvency,
reorganization, receivership or moratorium, (B) other laws relating to or
affecting the rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law).
(c) Except as may be required under federal or state securities laws
(and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required, under federal or state law, for
the execution, delivery and performance by the Purchaser of or compliance by
the Purchaser with this Agreement, or the consummation by the Purchaser of any
transaction described in this Agreement.
(d) None of the acquisition of the CMB Mortgage Loans by the
Purchaser, the transfer of the CMB Mortgage Loans to the Trustee, and the
execution, delivery or performance of this Agreement by the Purchaser, results
or will result in the creation or imposition of any lien on any of the
Purchaser's assets or property, or conflicts or will conflict with, results or
will result in a breach of, or constitutes or will constitute a default under
(A) any term or provision of the Purchaser's Articles of Incorporation or
Bylaws, (B) any term or provision of any material agreement, contract,
instrument or indenture, to which the Purchaser is a party or by which the
Purchaser is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over the Purchaser or its assets.
(e) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the CMB Mortgage Loans by the Seller to the
Purchaser as a sale of the CMB Mortgage Loans to the Purchaser in exchange for
consideration consisting of a cash amount equal to the Aggregate Purchase
Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any
court or by or before any other governmental agency or instrumentality which
would materially and adversely affect the validity of this Agreement or any
action taken in connection with the obligations of the Purchaser contemplated
herein, or which would be likely to impair materially the ability of the
Purchaser to perform under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which default might have consequences that
would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the CMB Mortgage Loans (the
"Closing") shall be held at the offices of Xxxxx & Xxxx, Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York time, on the Closing
Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and all of the
representations and warranties of the Purchaser set forth in Section 4 of this
Agreement shall be true and correct in all material respects as of the Closing
Date; provided, however, that any material inaccuracy in any representation
and warranty set forth in or made pursuant to Section 3(b) shall not affect
the Purchaser's obligation to purchase the CMB Mortgage Loans not affected by
such inaccuracy;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, the Underwriters and their respective counsel in their reasonable
discretion, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or a
Custodian on its behalf) and the Master Servicer, respectively, all documents
represented to have been or required to be delivered to the Trustee and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in
all material respects and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date; and
(e) The Seller shall have paid all fees and expenses payable by it to
the Purchaser or otherwise pursuant to this Agreement as of the Closing Date.
(f) A letter from the independent accounting firm of KPMG LLP in form
satisfactory to the Purchaser, relating to certain information regarding the
Mortgage Loans as set forth in the Prospectus and a letter from KPMG LLP
regarding certain information regarding the Certificates as set forth in the
Prospectus Supplement.
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 CMB Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of the
following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser
and the Underwriters may rely, to the effect that: (i) the representations and
warranties of the Seller in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as if
made on such date; and (ii) the Seller has, in all material respects, complied
with all the agreements and satisfied all the conditions on its part that are
required under this Agreement to be performed or satisfied at or prior to the
date hereof;
(c) An Officer's Certificate from an officer of the Seller, dated the
Closing Date, and upon which the Purchaser may rely, to the effect that each
individual who, as an officer or representative of the Seller, signed this
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein, was at
the respective times of such signing and delivery, and is as of the Closing
Date, duly elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such documents
and certificates are their genuine signatures;
(d) An Officer's Certificate from an officer of the Seller, dated the
Closing Date, and upon which the Purchaser and the Underwriters may rely, to
the effect that (i) such officer has carefully examined the Prospectus and
nothing has come to his attention that would lead him to believe that the
Prospectus, as of the date of the Prospectus Supplement or as of the Closing
Date, included or includes any untrue statement of a material fact relating to
the CMB Mortgage Loans or omitted or omits to state therein a material fact
necessary in order to make the statements therein relating to the CMB Mortgage
Loans, in light of the circumstances under which they were made, not
misleading, and (ii) such officer has examined the Memorandum and nothing has
come to his attention that would lead him to believe that the Memorandum, as
of the date thereof or as of the Closing Date, included or includes any untrue
statement of a material fact relating to the CMB Mortgage Loans or omitted or
omits to state therein a material fact necessary in order to make the
statements therein related to the CMB Mortgage Loans, in the light of the
circumstances under which they were made, not misleading.
(e) The resolutions of the requisite committee of the Seller's board
of directors authorizing the Seller's entering into the transactions
contemplated by this Agreement, the certificate of incorporation and by-laws
of the Seller, and a certificate of good standing of the Seller issued by the
New York State Banking Department not earlier than sixty (60) days prior to
the Closing Date;
(f) A written opinion of counsel for the Seller, reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters and
each of the Rating Agencies, together with such other written opinions as may
be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) The Seller shall indemnify and hold harmless the Purchaser, the
Underwriters, their respective officers and directors, and each person, if
any, who controls the Purchaser or any Underwriter within the meaning of
either Section 15 of the Securities Act of 1933, as amended (the "1933 Act")
or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934
Act"), against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the 1933 Act,
the 1934 Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Prospectus Supplement, the Memorandum, the Diskette or, insofar as they are
required to be filed as part of the Registration Statement pursuant to the
No-Action Letters, any Computational Materials or ABS Term Sheets with respect
to the Registered Certificates, or in any revision or amendment of or
supplement to any of the foregoing or (B) any items similar to Computational
Materials and ABS Term Sheets forwarded to prospective investors in the
Non-Registered Certificates, or (ii) arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; but only if and
to the extent that (I) any such untrue statement or alleged untrue statement
or omission or alleged omission arises out of or is based upon an untrue
statement or omission with respect to the CMB Mortgage Loans, the related
Mortgagors and/or the related Mortgaged Properties contained in the Data File
(it being herein acknowledged that the Data File was and will be used to
prepare the Prospectus Supplement including without limitation Annex A
thereto, the Memorandum, the Diskette, any Computational Materials and ABS
Term Sheets with respect to the Registered Certificates and any items similar
to Computational Materials and ABS Term Sheets forwarded to prospective
investors in the Non-Registered Certificates), (II) any such untrue statement
or alleged untrue statement or omission or alleged omission of a material fact
is with respect to, or arises out of or is based upon an untrue statement or
omission of a material fact with respect to, the information regarding the CMB
Mortgage Loans, the related Mortgagors, the related Mortgaged Properties
and/or the Seller set forth (X) in the Prospectus Supplement and the
Memorandum under the headings: "SUMMARY OF PROSPECTUS SUPPLEMENT--THE
PARTIES-The Mortgage Loan Sellers", "SUMMARY OF PROSPECTUS
SUPPLEMENT--Significant Loans", "THE MORTGAGE LOANS", "RISK FACTORS--Certain
Risk Factors Associated With the Mortgage Loans" and "DESCRIPTION OF THE
MORTGAGE POOL" and (Y) on Annex A to the Prospectus Supplement and, to the
extent consistent therewith, on a Diskette, or (III) any such untrue statement
or alleged untrue statement or omission or alleged omission arises out of or
is based upon a breach of the representations and warranties of the Seller set
forth in or made pursuant to Section 3; provided that the indemnification
provided by this Section 7 shall not apply to the extent that such untrue
statement or omission of a material fact was made as a result of an error in
the manipulation of, or in any calculations based upon, or in any aggregation
of the information regarding the CMB Mortgage Loans, the related Mortgagors
and/or the related Mortgaged Properties set forth in the Data File and Annex A
to the Prospectus Supplement, including without limitation the aggregation of
such information with comparable information relating to the Other Mortgage
Loans in the Trust Fund. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have (the information described in
clauses (I) through (III) above, collectively the "Seller Information").
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-62671 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information
incorporated therein by reference; "Base Prospectus" shall mean the prospectus
dated May 11, 1999, as supplemented by the prospectus supplement dated May 11,
1999 (the "Prospectus Supplement") relating to the Registered Certificates,
including all annexes thereto; "Memorandum" shall mean the private placement
memorandum dated May 11, 1999, relating to the Non-Registered Certificates,
including all exhibits thereto; "Registered Certificates" shall mean the Class
A-1, Class A-2, Class IO, Class B, Class C, Class D, Class E and Class F
Certificates; "Non-Registered Certificates" shall mean the Certificates other
than the Registered Certificates; "Computational Materials" shall have the
meaning assigned thereto in the no-action letter dated May 20, 1994 issued by
the Division of Corporation Finance of the Securities and Exchange Commission
(the "Commission") to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters"); "ABS Term Sheets" shall have the meaning assigned thereto
in the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(the "PSA Letter" and, together with the Xxxxxx letters, the "No-Action
Letters"); "Diskette" shall mean the diskette or compact disc attached to each
of the Prospectus and the Memorandum; and "Data File" shall mean the
compilation of information and data regarding the CMB Mortgage Loans covered
by the Agreed Upon Procedures Letter dated April 30, 1999 and rendered by KPMG
(a "hard copy" of which Data File was initialed on behalf of the Seller and
the Purchaser).
(c) The Purchaser shall indemnify and hold harmless the Seller, its
directors, officers, employees and agents, and each person, if any, who
controls the Seller within the meaning of either the 1933 Act or the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the 1933 Act, the 1934
Act, or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (in
preliminary or final form), or in any amendment thereof or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made, except to the extent that such untrue statement, alleged
untrue statement, omission or alleged omission is based upon the Seller
Information, and the Purchaser shall reimburse each such indemnified party, as
incurred, or any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which the Purchaser may otherwise have.
(d) Promptly after receipt by any person entitled to indemnification
under this Section 7 (an "indemnified party") of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to
be made against the Seller (the "indemnifying party") under this Section 7,
notify the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability that it may have to any indemnified party under this Section 7
(except to the extent that such omission has prejudiced the indemnifying party
in any material respect) or from any liability which it may have otherwise
than under this Section 7. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel selected by the
indemnifying party and satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel
to assert such legal defenses and to otherwise participate in the defense of
such action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the Purchaser and the
Underwriters, representing all the indemnified parties under Section 7(a) who
are parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
only be in respect of the counsel referred to in such clause (i) or (iii).
(e) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities, in such proportion as
is appropriate to reflect the relative fault of the indemnified and
indemnifying parties in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of the indemnified and
indemnifying parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such parties.
(f) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 7(e) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(e) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 7, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be
ultimately obligated to pay such expenses. If any expenses so paid by the
indemnifying party are subsequently determined to not be required to be borne
by the indemnifying party hereunder, the party that received such payment
shall promptly refund the amount so paid to the party which made such payment.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by the
Purchaser, the Underwriters, any of their respective directors or officers, or
any person controlling the Purchaser or the Underwriters, and (iii) acceptance
of and payment for any of the Certificates.
(h) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters shall be third-party
beneficiaries of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the Purchaser to
the extent that the Purchaser has paid) the Seller's pro rata portion of the
aggregate of the following amounts (the Seller's pro rata portion to be
determined according to the percentage that the CMB Balance represents of the
Initial Pool Balance): (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a preliminary and final Prospectus and Memorandum
relating to the Certificates; (ii) the initial fees, costs, and expenses of
the Trustee (including reasonable attorneys' fees); (iii) the filing fee
charged by the Securities and Exchange Commission for registration of the
Certificates so registered; (iv) the fees charged by the Rating Agencies to
rate the Certificates so rated; (v) the expense of recording any assignment of
Mortgage or assignment of Assignment of Leases as contemplated by Section 2
hereof; and (vi) the cost of obtaining a "comfort letter" from a firm of
certified public accountants selected by the Purchaser and the Seller with
respect to numerical information in respect of the CMB Mortgage Loans included
in the Prospectus and Memorandum. All other costs and expenses in connection
with the transactions contemplated hereunder shall be borne by the party
incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of the
parties hereto that the conveyance of the CMB Mortgage Loans by the Seller to
the Purchaser as provided in Section 2 hereof be, and be construed as, a sale
of the CMB Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the CMB 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 CMB 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 CMB 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 Articles 8 and 9 of the Uniform Commercial Code of the applicable
jurisdiction; (ii) the conveyance provided for in Section 2 hereof shall be
deemed to be a grant by the Seller to the Purchaser of a security interest in
all of the Seller's right, title and interest in and to the CMB Mortgage
Loans, and all amounts payable to the holder of the CMB Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities
or other property, including without limitation all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv)
the possession by the Trustee or any of its agents, including, without
limitation, the Custodian, of the Mortgage Notes, and such other items of
property as constitute instruments, money, negotiable documents or chattel
paper shall be deemed to be "possession by the secured party" for purposes of
perfecting the security interest pursuant to Section 9-305 of the Uniform
Commercial Code of the applicable jurisdiction; and (v) notifications to
persons (other than the Trustee) holding such property, and acknowledgments,
receipts or confirmations from persons (other than the Trustee) holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as
applicable) of the secured party for the purpose of perfecting such security
interest under applicable law. The Seller and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as may be necessary
to ensure that, if this Agreement were deemed to create a security interest in
the CMB Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement and the Pooling and
Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents, demands and
other communications required hereunder shall be in writing and telecopied or
delivered to the intended recipient at the "Address for Notices" specified
beneath its name on the signature pages hereof or, as to either party, at such
other address as shall be designated by such party in a notice hereunder to
the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. 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 CMB Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 12. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or which is held to
be void or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof. Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof.
SECTION 13. 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 14. 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 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, the Underwriters (as intended third party beneficiaries hereof) and
their permitted successors and assigns, and the officers, directors and
controlling persons referred to in Section 7. This Agreement is enforceable by
the Underwriters and the other third party beneficiaries hereto in all
respects to the same extent as if they had been signatories hereof.
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, or third party beneficiary, against whom
such waiver or modification is sought to be enforced.
SECTION 18. Accountants' Letters. The parties hereto shall cooperate with KPMG
LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to deliver the letters required by the
Underwriting Agreement.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused
their names to be signed hereto by their respective duly authorized officers
as of the date first above written.
SELLER
------
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
Address for Notices:
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx
Managing Director
Telecopier No.: (000) 000-0000
PURCHASER
---------
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director/Vice President
Address for Notices:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (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 complied in
all material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the
Company, the Mortgage Loan Seller had good title to, and was the sole owner
of, each Mortgage Loan, and the Mortgage Loan 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.
4. The proceeds of such Mortgage Loan have been fully disbursed and
there is no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if
any) and other agreement executed in connection with such Mortgage Loan are
legal, valid and binding obligations of the related mortgagor (subject to any
non-recourse provisions therein and any state anti-deficiency legislation),
enforceable in accordance with their terms, except with respect to provisions
relating to default interest, yield maintenance charges or prepayment premiums
and except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium 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).
6. As of the date of its origination, there was no valid offset,
defense, counterclaim or right to rescission with respect to any of the
related Mortgage Note, Mortgage(s) or other agreements executed in connection
therewith, and, as of the Cut-Off Date, to the best knowledge of the Mortgage
Loan Seller, there is no valid offset, defense, counterclaim or right to
rescission with respect to such Mortgage Note, Mortgage(s) or other
agreements.
7. Each related assignment of Mortgage and Assignment of Leases from
the Mortgage Loan Seller to the Trustee constitutes the legal, valid and
binding assignment from the Mortgage Loan Seller, except as such enforcement
may be limited by bankruptcy, insolvency, 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).
8. Each related Mortgage is a valid and enforceable first lien on the
related Mortgaged Property subject only to the following title exceptions
(each such 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 due and payable, (b) covenants,
conditions and restrictions, rights of way, easements and other matters of
public record, none of which, individually or in the aggregate, materially
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 when they become due or materially and adversely affects
the value of the Mortgaged Property and (c) the exceptions (general and
specific) set forth in such policy 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 when they
become due or materially and adversely affects the value of the 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 to perfect a valid security
interest in all items of personal property described therein owned by a
Mortgagor and located on each Mortgaged Property, to the extent perfection may
be effected pursuant to applicable law by recording or filing, and the
Mortgages, security agreements, chattel Mortgages or equivalent documents
related to and delivered in connection with the related Mortgage Loans
establish and create a valid and enforceable lien and priority security
interest on such items of personalty except as enforceability may be limited
by bankruptcy or other laws affecting creditor's rights generally or by the
application of the rules of equity.
10. All taxes and governmental assessments that prior to the Cut-Off
Date became due and owing in respect of each related Mortgaged Property have
been paid, or an escrow of funds in an amount sufficient to cover such
payments has been established.
11. To the Mortgage Loan Seller's knowledge as of the Cut-Off Date,
after conducting due diligence consistent with the practice of institutional
lenders generally for properties of the same type as the related Mortgaged
Property, each related Mortgaged Property was free and clear of any material
damage that would affect materially and adversely the value of such Mortgaged
Property as security for the Mortgage Loan and as of the Cut-Off Date there
was no proceeding pending for the total or partial condemnation of such
Mortgaged Property.
12. The lien of each related Mortgage as a first priority lien in the
original principal amount of such Mortgage Loan (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 Mortgage Loan Seller, its successors and assigns,
subject only to the Title Exceptions; the Mortgage Loan Seller or its
successors or assigns is the named insured of such policy; such policy is
assignable and will inure to the benefit of the Trustee as Mortgagee of
record; and is in full force and effect upon the consummation of the
transactions contemplated by this Agreement; no claims have been made under
such policy and the Mortgage Loan Seller has not done anything, by act or
omission, and the Mortgage Loan Seller has no knowledge of any matter, which
would impair or diminish the coverage of such policy.
13. As of the date of its origination, all insurance coverage
required under each related Mortgage, 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 replacement cost of improvements located on such Mortgaged Property, or an
amount at least equal to the initial principal balance of the Mortgage Loan,
was in full force and effect with respect to each related Mortgaged Property;
and, as of the Cut-Off Date, to the best knowledge of the Mortgage Loan
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 no notice of
termination or cancellation with respect to any such insurance policy has been
received by the Mortgage Loan Seller; and, except for the Mortgage Loans
listed on Exhibit I-A attached hereto, and except for certain amounts not
greater than amounts which would be considered prudent by an institutional
commercial Mortgage lender 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, will be applied either to the repair or restoration of all or
part of the related Mortgaged Property or the reduction of the outstanding
principal balance of the Mortgage Loan.
14. Other than payments due but not yet 30 days or more delinquent,
there is, to the Mortgage Loan Seller's knowledge, (A) no material default,
breach, violation or event of acceleration existing under the related Mortgage
Note or each related Mortgage, and (B) 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, breach, violation or event of acceleration
under any of such documents; the Mortgage Loan Seller has not waived any other
material default, breach, violation or event of acceleration under any of such
documents; and under the terms of each Mortgage Loan, each related Mortgage
Note, each related Mortgage and the other loan documents in the related
Mortgage File, no person or party other than the Mortgagee may declare an
event of default or accelerate the related indebtedness under such Mortgage
Loan, Mortgage Note or Mortgage.
15. As of the Cut-Off Date, the Mortgage Loan is not, and in the
prior 12 months (or since the date of origination if such Mortgage Loan has
been originated within the past 12 months), has not been, 30 days or more past
due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at
which interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
prepayment premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage does not provide for or permit, without the
prior written consent of the holder of the Mortgage Note, each related
Mortgaged Property to secure any other promissory note or obligation, except
as expressly described in such Mortgage.
18. Each Mortgage Loan constitutes a "qualified Mortgage" within the
meaning of Section 860G(a)(3) of the Code (but without regard to the rule in
Treasury Regulations 1.860 G-2(f)(2) that treats a defective obligation as a
qualified Mortgage, or any substantially similar successor provision).
Accordingly, the Mortgage Loan Seller represents and warrants that each
Mortgage Loan is directly secured by a Mortgage on a commercial property or a
multifamily residential property, and either (1) substantially all of the
proceeds of such Mortgage Loan were used to acquire, improve or protect the
portion of such commercial or multifamily residential property that consists
of an interest in real property (within the meaning of Treasury Regulations
Sections 1.856-3(c) and 1.856-3(d)) and such interest in real property was the
only security for such Mortgage Loan as of the Testing Date (as defined
below), or (2) the fair market value of the interest in real property which
secures such Mortgage Loan was at least equal to 80% of the principal amount
of the Mortgage Loan (a) as of the Testing Date, or (b) as of the Closing
Date. For purposes of the previous sentence, (1) the fair market value of the
referenced interest in real property shall first be reduced by (a) the amount
of any lien on such interest in real property that is senior to the Mortgage
Loan, and (b) a proportionate amount of any lien on such interest in real
property that is on a parity with the Mortgage Loan, and (2) the "Testing
Date" shall be the date on which the referenced Mortgage Loan was originated
unless (a) such Mortgage Loan was modified after the date of its origination
in a manner that would cause "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b) such
"significant modification" did not occur at a time when such Mortgage Loan was
in default or when default with respect to such Mortgage Loan was reasonably
foreseeable. However, if the referenced Mortgage Loan has been subjected to a
"significant modification" after the date of its origination and at a time
when such Mortgage Loan was not in default or when default with respect to
such Mortgage Loan was not reasonably foreseeable, the Testing Date shall be
the date upon which the latest such "significant modification" occurred.
19. One or more environmental site assessments were performed by an
environmental consulting firm independent of the Mortgage Loan Seller and the
Mortgage Loan Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Mortgage Loan Seller, having made no independent
inquiry other than to review the report(s) prepared in connection with the
assessment(s) referenced herein, has no 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).
20. Each related Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the realization against the Mortgaged Property of the benefits of
the security, including realization by judicial or, if applicable,
non-judicial foreclosure, subject to the effects of bankruptcy or similar law
affecting the right of creditors and the application of principles of equity,
and there is no exemption available to the Mortgagor which would interfere
with such right to foreclose.
21. To the actual knowledge of Mortgage Loan Seller as of the Cut-Off
Date, no Mortgagor is a debtor in any state or federal bankruptcy or
insolvency proceeding.
22. Each Mortgage Loan is a whole loan, contains no equity
participation by the lender or shared appreciation feature and does not
provide for any contingent or additional interest in the form of participation
in the cash flow of the related Mortgaged Property or provide for negative
amortization.
23. Each related Mortgage or loan agreement contains provisions for
the acceleration of the payment of the unpaid principal balance of such
Mortgage Loan if, without complying with the requirements of the Mortgage or
loan agreement, the related Mortgaged Property, or any controlling interest
therein, is directly transferred or sold, or 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 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 each
case, 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 the Mortgage Loans
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) U.S. Treasury Obligations sufficient
to pay the Mortgage Loans in accordance with their terms, and with respect to
Mortgage Loans which permit the related Mortgagor to substitute a replacement
property, the terms of the related Mortgage do not provide for release of any
portion of the Mortgaged Property from the lien of the Mortgage except in
consideration of payment therefor.
27. Except for the Mortgage Loans listed on Exhibit I-B attached
hereto, to the Mortgage Loan Seller's knowledge, as of the date of origination
of such Mortgage Loan, and, to the Mortgage Loan Seller's knowledge, as of the
Cut-Off Date, there are no violations of any applicable zoning ordinances,
building codes and land laws applicable to the Mortgaged Property or the and
occupancy thereof which would have a material adverse effect on the value,
operation or net operating income of the Mortgaged Property.
28. None of the 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 related Mortgagor's and operation of such Mortgaged
Property (unless affirmatively covered by the title insurance) and no
improvements on adjoining properties encroached upon such Mortgaged Property
to any material extent.
29. Except for the Mortgage Loans listed on Exhibit I-C attached
hereto, with respect to at least 95% of the Mortgage Loans (by 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.
30. No advance of funds has been made after origination, directly or
indirectly, by the Mortgage Loan Seller to the Mortgagor and, to the Mortgage
Loan Seller's 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 best of the Mortgage
Loan Seller's knowledge, as of the Cut-Off Date, there was no pending action,
suit or proceeding against the Mortgagor or the related Mortgaged Property an
adverse outcome of which would materially affect either such Mortgagor's
performance under the related Mortgage Loan documents or the holders of the
Certificates.
32. The Mortgage Rate (exclusive of any default interest, late
charges or prepayment premiums) of such Mortgage Loan (other than an ARD Loan
after the Anticipated Repayment Date) is a fixed rate, and complied as of the
date of origination with, or is exempt from, applicable state or federal laws,
regulations and other requirements pertaining to usury;
33. If the related Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, is properly designated and
serving under such Mortgage.
34. 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.
35. 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
36. All escrow deposits and payments required pursuant to the
Mortgage Loan are in the possession, or under the control, of the Mortgage
Loan Seller or its agent and there are no deficiencies in connection therewith
37. The related Mortgagor has represented to the Mortgage Loan Seller
that as of the date of origination of the Mortgage Loan, such Mortgagor, the
related lessee, franchisor or operator was in possession of all material
licenses, permits and authorizations then required for use of the related
Mortgaged Property, which the related Mortgagor represented were valid and in
full force and effect.
38. The origination (or acquisition, as the case may be), servicing
and collection practices used by the Mortgage Loan Seller with respect to the
Mortgage Loan have been in all respects legal and have met customary industry
standards.
39. Each Mortgagor is a entity organized under the laws of a state of
the United States.
40. Except for the Mortgage Loans listed in Exhibit I-D attached
hereto, each of the Mortgagors (or its affiliate) has title in the fee simple
interest in each related Mortgaged Property.
41. 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
misrepresentation. Furthermore, 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, insurance proceeds or condemnation awards or any
breach of the environmental covenants in the related Mortgage Loan documents.
SCHEDULE II
Ground Lease Representations and Warranties
1. Such Ground Lease or a memorandum thereof has been or will be duly
recorded 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. Except for the Mortgage Loans listed on Exhibit II-A attached
hereto, 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. Except for the Mortgage Loans listed on Exhibit II-B attached
hereto, such Ground Lease may not be amended, modified, canceled or terminated
without the prior written consent of the Mortgagee and that any such action
without such consent is not binding on the Mortgagee, its successors or
assigns, except if an event of default occurs under the Ground Lease and
notice is provided to the Mortgagee and such default is curable by the
Mortgagee, but remains uncured beyond the applicable cure period.
4. To the actual knowledge of the Mortgage Loan Seller, at the
Closing Date, such Ground Lease is in full force and effect and other than
payments due but not yet 30 days or more delinquent, (1) there is no material
default, and (2) 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. Except for the Mortgage Loans listed on Exhibit II-C attached
hereto, 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 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. Except for the Mortgage Loans listed on Exhibit II-D attached
hereto, the ground lease is not subject to any liens or encumbrances superior
to, or of equal priority with, the Mortgage, subject, however, to only the
Title Exceptions.
7. A Mortgagee is permitted a reasonable opportunity 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) that
extends not less than 10 years beyond the Stated Maturity Date of the related
Mortgage Loan.
9. Except for the Mortgage Loans listed on Exhibit II-E attached
hereto, 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 by it having the right to
hold and disburse such proceeds as repair or restoration progresses, or to the
payment 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 any institutional investor,
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
lender.
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.
EXCEPTION EXHIBITS
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EXHIBIT I-A
1. Loan No. 17 Village West. The Mortgage Loan permits one tenant to not name
the Mortgagor as insured or additional insured under insurance policies
maintained by such tenant, however, the tenant is required to rebuild its
damaged property in the event of a fire or other casualty and the Mortgagor is
required to maintain the appropriate insurance coverage if the tenant fails to
maintain such coverage.
EXHIBIT I-B
1. Loan No. 100 SDJ Enterprises. The related mortgaged property is currently a
legal-non conforming use with respect to the adequacy of parking and
turn-around space in connection with loading dock areas pursuant to a citywide
variance which is effective until the earlier of (i) the occurrence of a
structural alteration of the project or (ii) August 19, 2009. The applicable
zoning laws provide that the city council may relieve the owner of any
non-complying property from compliance with the provisions of clauses (i) and
(ii) above by issuing a variance for the property where (x) compliance creates
an unreasonable hardship, (y) the existing use does not and will not adversely
affect the surrounding area and (z) the use of the property does not require
the number of spaces and/ or area specified by the zoning laws. The Mortgagor
and certain of its principal owners have executed and delivered to the
Mortgagee a zoning indemnity which covers any losses relating to the failure
of the related Mortgaged Property to comply with certain parking related
zoning ordinances, the costs of bringing the Mortgaged Property into
compliance with such ordinances or any non-conforming building on the
Mortgaged Property or non-conforming use of the Mortgaged Property.
EXHIBIT I-C
1. Loan No. 39 Hampton Inn Maingate. The related Mortgagor is the owner of a
promissory note in the amount of approximately $4,429,155 as of the date of
origination of the related Mortgage Loan, payable by Universal Motor Lodges,
an affiliate of the Mortgagor, which has been pledged to the Mortgagee. The
related Mortgagor delivered a substantive non-consolidation opinion to the
Mortgagee which specifically referenced such promissory note in connection
with the origination of the related Mortgage Loan.
EXHIBIT I-D
1. Loan No. 1.02 Sheraton Suites Portfolio - Dallas Property
2. Loan No. 5.02 Wilshire Portfolio - ICM Building (Lapeer)
3. Loan No. 5.03 Wilshire Portfolio - Wilshire Palm Building
4. Loan No. 8 0000 Xxxxxxxxxx Xxxx.
EXHIBIT II-A
1. Loan No. 1 Sheraton Suites Portfolio Loan. With respect to the Ground Lease
securing the Dallas, Texas property, the Ground Lease provides that upon
foreclosure (or acceptance of assignment in lieu thereof), the Mortgagor's
interest in the Ground Lease is assignable to the Mortgagee and its assigns
without the landlord's consent, provided an Approved Operator is engaged to
operate and manage the related Mortgaged Property. Landlord has approved the
following companies as "Approved Operators:" Marriott, Westin Hotel Company,
Sheraton Inns, Inc., Hilton Hotels Corporation, Four Seasons Hotels Limited,
Hyatt Corporation, Holiday Inns, Inc. (including Embassy Suites), GMK Hotels,
Inc. (Guest Quarters), Xxxx'x Hotels Corporation, Wyndham Hotel Company and
Xxxxxxxx Hotel Company. Landlord has agreed not to unreasonably withhold or
delay approval of other operators.
EXHIBIT II-B
1. Loan No. 8 0000 Xxxxxxxxxx Xxxxxxxxx. The Ground Lease applicable to the
Mortgaged Property provides that the Ground Lease may not be modified,
canceled or surrendered without the Mortgagee's consent, but such Ground Lease
does not specifically provide that any such action without such consent is not
binding upon the Mortgagee, its successors and/or assignees.
2. Loan No. 5 Wilshire Properties Portfolio Loan. The Ground Leases applicable
to the Wilshire Lapeer Property and the Wilshire Palm Property provide that
each Ground Lease may not be modified, canceled or surrendered without the
Mortgagee's consent, but such Ground Leases do not specifically provide that
any such action without such consent is not binding upon the Mortgagee, its
successors and/or assignees.
EXHIBIT II-C
1. Loan No. 5 Wilshire Properties Portfolio. Pursuant to the terms of each
applicable Ground Lease relating to the Wilshire Lapeer Property and the
Wilshire Palm Property, the lessor is required to deliver to the Mortgagee all
notices of default delivered to lessee, but neither Ground Lease specifically
provides that no notice is effective against the Mortgagee unless a copy has
been given to the Mortgagee.
EXHIBIT II-D
1. Loan No. 5 Wilshire Properties Portfolio. Each of the Ground Leases
relating to the Wilshire Lapeer Property and the Wilshire Palm Property state
that the lessee shall subordinate the lien of the Ground Lease to the lien of
any future fee mortgage, provided such subordination agreement, which shall be
approved by the Mortgagee (which approval shall not be unreasonably withheld),
provides so long as the Ground Lease has not been terminated and lessee is not
in default thereunder beyond any applicable notice and cure period (i) that
lessee shall be entitled to non-disturbance rights, (ii) that lessee's rights
shall not be diminished or limited in any way whatsoever under the Ground
Lease, and (iii) that neither the lessee or the Mortgagee shall be named in
any foreclosure proceeding. As of the closing of the related Mortgage Loan,
there were no fee mortgages on the Wilshire Lapeer Property or the Wilshire
Palm Property.
EXHIBIT II-E
1. Loan No. 8 0000 Xxxxxxxxxx Xxxxxxxxx. In the event the ground lessee does
terminate the Ground Lease in connection with a partial taking, the award
shall be allocated and distributed as follows: (1) to ground lessor in the
amount of $5,000,000, (2) to the Mortgagee in an amount, up to, but not
exceeding the outstanding indebtedness due under the Mortgage, (3) to ground
lessor and ground lessee for reasonable expenses incurred in connection with
such partial taking, (4) to ground lessee in the amount of $5,000,000, and (5)
with the balance given to ground lessor and ground lessee, apportioned
pursuant to their interests. The Mortgagor has obtained an insurance policy
which will cover up to $5,000,000 in shortfalls of amounts due under the
Mortgage as a result of the payment described in clause 1 above.
2. Loan No. 5 Wilshire Properties Portfolio. The Ground Leases relating to the
Wilshire Lapeer Property and the Wilshire Palm Property each provide that upon
a partial taking of the Mortgaged Property the rights of the parties with
respect to such award for a partial taking shall be governed according to the
law in effect at the time of such taking. At the time of a partial taking,
California law may provide that the lessor shall be entitled to a portion of
the condemnation award prior to the delivery to the leasehold Mortgagee of the
portion of the award due to the lessee under applicable California law.
EXHIBIT A
Mortgage Loan Schedule
The CMB Mortgage Loans transferred pursuant to this Agreement are set forth on
Exhibit B to the Pooling and Servicing Agreement under the column heading
"Mortgage Loan Seller" and with the designation "CMB".
